10 - Chapter 4 PDF

CHAPTER – IV
CONSTITUTIONAL PROTECTION AND CONCEPT

OF BAIL
4.1 INTRODUCTION
The common law principle, ―every person deemed to be innocent, until proved
guilty beyond doubt‖, apply in India. As bail is except anticipatory bail under
Section 438 is post arrest and pre-trial remedy to the person who alleged to be
accused on some primafacie evidences, but not proven guilty as due to
pendency of trial or inquiry.1 Bail is release of a person from legal custody by
undertaking that he shall appear at the time and place designated, as bail is
mainly pre-conviction stage- i.e. only on basis of some complaints and some
sort of investigation. So basically there is some sort of encroachment by the
police that police prejudice the liberty right of the said arrestee as he is till now
not declared to be accused or convicted and as our criminal justice also based
on the principle of presumption of innocence unless and until he proven guilty.
So concept of bail involve two aspect as in one hand involves the personal
liberty guaranteed under Article 21 of the Constitution and on the other hand
involve the safety and security of the society and for that purpose there should
be some sort of encroachment on the liberty of the suspected person. So that
there to bridge the gap between the two opposite and contrary interest in one
way societal interest to arrest the person suspected or accused and on the other
hand the individual liberty of the person which guaranteed as a fundamental
right under Article 21 of the Constitution by releasing him on some bail or
bond.2
As Liberty occupies a place of pride in our socio-political order. Who could

better knew the value of liberty more than the founding fathers of our
Constitution. Article 21 of the Constitution provides that no person shall be
1
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 74.
2
Asim Pandya, Second Edition, 2015, Law of Bail Practice and Procedure. Lexis Nexis, p. 18.
105
deprived of his personal liberty except according to procedure established by
law. It follows therefore, that the personal liberty of an individual can be
curbed by procedure established by law.3 The Code of Criminal Procedure,
1973, is one such procedural law. That law permits curtailment of liberty of
anti-social and anti-national elements. Article 22 casts certain obligations on
the authorities in the event of arrest of an individual accused of the commission
of a crime against society or the Nation. In cases of under-trials charged with
the commission of an offence or offences the court is generally called up to
decide whether to release him on bail or to commit him to jail.4
4.2 FUNDAMENTAL RIGHTS AND BAIL: CONCEPT IN

DIFFERENT CONSTITUTION
Fundamental rights are not new rights but are the natural rights with which a
man is born. They are recognised as inseparable or inviolable. Under the
Constitution, laws inconsistent or in conflict with fundamental rights except
within prescribed limits permitting curtailment of such rights, are void. The
state shall not make any law, which takes away or abridges such rights. Any
law made in contravention of this prohibition shall be void to the extent of the
contravention. Backstone in his celebrated commentaries‘ on the Laws of
England, pronounced his philosophy of natural or absolute rights which he
reduced to three principle or primary articles:5
1. The right of personal security.
2. The right of personal liberty.
3 Right of private property.6
3
4
State of Maharashtra v. Captain Buddhikota Subha Rao, AIR 1989 SC 2292 at p. 2295 : 1989 Cri LJ
2317 : 1989 Supp (2) SCC 605 : 1990 SCC (Cri) 126.
5
Article 8 of US Constitution.
6
106
4.3 FUNDAMENTAL RIGHTS UNDER THE AMERICAN
CONSTITUTION
Article 6 lays down that in all criminal prosecutions the accused shall enjoy the
rights to a speedy and public trial by any impartial jury of the state and district
wherein the crime shall have been committed ,which district shall have been
previously ascertained by law, and to be informed of the nature.7
Article 8 lays down that excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishment inflicted. Section 1(i) of
Article 14 lays down that all person born or naturalised in the United States and
subject to the jurisdiction thereof, are citizen of the united states and of the
state wherein they reside. No state shall make or enforce any law, which shall
abridge the immunities of the citizens of the United States, nor shall any state
deprive any person of life, liberty or property without due process of law, nor
deny any person within its jurisdiction an equal protection of law.
4.3.1 Due Process of Law
The liberty protected by due process includes the rights of the citizens to be not
merely free from physical restraint of his person, as by incarceration, but is
deemed to embrace the right of the citizen to be free in enjoyment of all his
faculties, to be free to use them in all lawful ways, to live and work where he
will, to earn his livelihood or avocation and, for that purpose, to enter into all
contracts which may be proper, necessary and essential to his carrying out to a
successful.8
The phrase ‗due process‘ has not been defined in the American Constitution. Its
meaning and scope has been allowed to be developed by adjudication. Thus the
expression means the process of law, which hears before it condemn, which
7
Article 6 of U.S. Constitution.
8
Allegeyer v. Lousiana, (1897) 167 US 578.
107
proceeds upon inquiry and renders judgment only after a trial9 it, therefore
ensure that a man‘s legal rights should not be affected by proceedings taken
behind his back. He should be given due notice of the proceedings of the time
and place including the tribunal before which the claim is to be made, of the
nature of the case against him, and be afforded sufficient liberty to prepare and
make his answer.10 In a capital case due process of law involves the right of the
accused to be defended by a counsel, and denial of such a right would
invalidate the trial11 denial of due process in a criminal trial is failure to
observe fairness in trial essential to the concept of justice.12 Even a judgment
based on a confession extorted under duress is denial of due process.13 No free
man shall be arrested or detained in prison or deprived of his freedom or out-
lawed or banished or in any way molested and will not set forth against him nor
send against him, unless by the lawful judgment of his peers, and by the law of
the land.14
4.4 FUNDAMENTAL RIGHTS UNDER THE BRITISH

CONSTITUTION
There is no written Constitution in England and there is no declaration of

fundamental rights under the English Constitution. In England, the Megna
Carta of 1215 and the petition of rights 1628, lays down that no man shall be
arrested or imprisoned or disseized, outlawed or exiled for in any way molested
save by the lawful judgment of his peers or the law of the land. Thus, the
principle of the process of law itself is equivalent to the law of the land in
England and had its origin in the 13th century, and this protection of liberty of
the individual has been confirmed by successive english sovereigns. Even
though there is no formal declaration of fundamental rights, the four great
9
Dartmouth College Case 4 Law Edn 129; Trustees of Dartmouth College v. Woodward, 4 Wheeton
518.
10
Roller v. Holly, (1900) 176 WS 398.
11
Poweel v. Alabama (1932) 287 US 45.
12
Lisseuba v. Califronia (1941) 314 US 219.
13
Chambers v Florida (1940) 309 US 227; Asheroft v. Tennessee, (1944) 322 US 143.
14
108
charters, The Magna Carta, the Petition of Rights, the Bill of Rights and The
Act of Settlement contain provisions upholding the liberties of the subjects. But
the liberties guaranteed under these charters are not beyond legislative
interferences. Since the parliament is supreme and can pass any law as it thinks
fit, the liberty of an individual in England is a liberty confined and controlled
by law, whether common law or statute.15
The fundamental difference in the concept of individual liberty between

America and England is that in America the Constitution is intended to act as a
limitation on the power of the legislature as well as the executive, whereas in
England the maxims of liberty and justice are only applied as guards against
executive usurpation and tyranny.16 In England no member of the executive can
interfere with the liberty of a subject unless he can support the legality of his
action before a court of justice.17
4.5 PROTECTION OF PERSONAL LIBERTY
Deprivation of liberty must be considered a punishment, unless it can be

required to ensure that an accused person will stand his trial when called upon.
The courts owe more than verbal respect to the principle that punishment
begins after conviction, and that every man is deemed to be innocent until duly
tried and duly found guilty. From the earliest time, it was appertained that
detention in custody pending completion of trial could be a cause of great
hardship. From to time, necessity demands that some un-convicted person
should be held in custody pending trial to secure their attendance at the trial but
in such cases, ―necessity‖ is the operative test. In this country, it would be quite
contrary to the concept of personal liberty enshrined in the Constitution that
any person should be punished in respect of any matter, upon which he has not
been convicted or that in any circumstances, he should be deprived of his
15
Liversidge v. Anderson, (1941) 3 AII ER 338:110 LJKB 724: 1942 AC 206.
16
A.K. Gopalan v. State of Madras, 1950 SCR 88: AIR 1950 SC 27:1950 SCJ 174.
17
Eshugbayi Eleko v. Officer Administering the Govt. of Nigeria, AIR 1931 PC 248: 61 Mad LJ 975:
1931 AC 662.
109
liberty upon only the belief that he will temper with the witnesses if lift at
liberty, save in the most extraordinary circumstances. Apart from the question
of prevention being the object of a refusal of bail, one must not lose sight of the
fact that any imprisonment before conviction has a substantial punitive content
and it would be improper for any court to refuse bail as a mark of disapproval
of former conduct whether the accused has been convicted for it or not or to
refuse bail to an un-convicted person for the purpose of giving him a taste of
imprisonment as a lesson.18 This decision has to be made, mainly in non-
bailable cases, having regard to the nature of the crime, the circumstances in
which it was committed, the background of the accused, the possibility of his
jumping bail.19 The principle underlying the grant of bail as envisaged in this
section is that an accused person is presumed in law to be innocent unless he is
proved to be guilty.20
The granting of bail will facilitate him to defend himself properly better that he
could were he kept in custody.21
4.5.1 Relevance and Importance of Personal Liberty
All human beings are born with some unalienable rights like life, liberty and
pursuit of happiness. The importance of these natural rights can be found in the
fact that these are fundamental for their proper existence and no other right can
be enjoyed without the presence of right to life and liberty.
Origin of liberty: ―liberty‖ can be traced in the ancient Greek civilization. The
Greeks distinguished between the liberty of the group and the liberty of the
individual. In 431 B.C., an Athenian Statesmen described that the concept of
liberty was the outcome of two notions, firstly, protection of group from attack
18
Sanjay Chandra v. Central Bureau of Investigation, AIR 2012 SC 830: 2012 Cr LJ 702: 2011 AIR
SCW 6838.
19
20
Bail Law and Procedures 6th edition by Janak Raj Jai, p. 16.
21
Emperor v. H.L. Hutchinson, AIR 1931 All 356 (358-59): 32 Cr LJ 1271: (1931) All LJ 515: 134 IC
842 at P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 74.
110
and secondly, the ambition of the group to realize itself as fully as possible
through the self-realization of the individual by way of human reasons. Greeks
assigned the duty of protecting their liberties to the state. According to
Aristotle, as the state was a means to fulfil certain fundamental needs of human
nature and was a means for development of individual‘s personality in
association of fellow citizens so it was natural and necessary to man.22
According to Dicey means ―the right to personal liberty as understood in

England means in a substance a person‘s right not to be subjected to
imprisonment arrest or other physical coercion in any other manner that does
not admit of legal justification‖ in other words personal liberty means freedom
from physical restraint and coercion which is not authorized by law.23
It is very difficult to define‖ liberty‖ it has many facets and meanings. The
philosophers and moralists have praised freedom and liberty but this term is
difficult to define because it does not resist any interpretation. The term
―liberty‖ may be defined as the affirmation by an individual or group of his
own essence. It needs the presence of three factors, firstly, harmonious balance
of personality, secondly, the absence of restraint upon the exercise of a
continuous initiative.24
4.5.2 Nexus between Bail and Liberty
The requirement of the law to enlarge a person on bail is an expressive concern

towards the right of an accused to enjoy his ―personal freedom‘. A demand on
the surety to produce the accused person for purposes of fulfilling his
obligation to the Court and to accomplish the objective of the law to determine
the liability of person so released is meaningful in terms of ‗public interest‘
implist in the meaning of bail is also the use of technique evolved for effecting
22
Asim Pandya, Second Edition, 2015, Law of Bail Practice and Procedure. Lexis Nexis, p. 293.
23
Available at http://www.slideshare.net
24
Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 AIR 2011 SC 312.
111
a symbiosis between these two co-equal values.25 Since all these values are
cherished by the social order they cannot be regarded as being in competition
with each other. Neither one can be deemed to have precedence over the other.
Accordingly, judicial activism cannot spare itself from engaging in the exercise
of striking a balance between the two since both have to go hand in hand. In
this context bail means ‗to set at liberty a person arrested or imprisoned, or
security being taken for his appearance on a day at a place certain. Because the
party arrested or imprisoned is delivered into the hands of those who bind
themselves or become bail for his due appearance when required, in order to
that he may be safely protected from prison.26 Thus, protection of the prisoner
and his right to liberty is given equal emphasis along with the requirement of
his being brought to trial. The principal aim of bail is removal of restrictive and
punitive consequences of pre-trial detention of an accused. This is achieved by
delivering him to the custody of his surety who may be a third party. Such
custody may also be given to one‘s own self by way of furnishing a bond that
on demand made upon him to that he will readily attend the court. It is an
obligation of law enforcement agencies that if a criminal process is initiated by
the alleged action of a wrong-doer, it is to be accomplished. Therefore, this
aspect assumes substantial significance in the operation of bail. Accordingly,
the grant of bail for release may be allowed with appropriate conditions which
may resultantly cover three types of situations namely:
(a) Where the accused is deemed safe with the accused himself.
(b) Where it is delivered to the surety.
(c) Where it may be delivered to the state for safe custody.
The mechanism of bail is thus meant for manoeuvring a best arrangement for
custodial control of the accused in the system. The bail is a matter of right for
safe keeping of the accused to answer a charge. In order to implement this
25
Kamlapati Trivedi v. State of W.B., AIR 1979 SC 777.
26
Venkatarmaiya‘s Law Lexicon, Vol. 1, 131 (1971).
112
right, the mechanism of bail has been designed to deliver the custody of the
accused either to self, to a surety or to the state, but in each case the accused is
to be assured of the beneficial enjoyment of regulated freedom. In all these
cases, the common condition attached is that the person released on bail will be
brought before the court on demand. Other conditions may be imposed as may
be deemed appropriate. It may be interjected in passing that in the event of
delivering custody to the state by way of refusal of bail to the accused or his
surety the Court may set out other conditions for the benefit and enjoyment of
liberty by the accused.27
4.5.3 Liberty of Individual and Concept of Bail
The issue of bail is one of liberty, justice, public safety and burden of the
public treasury, all of which insist that a developed jurisprudence of bail is
integral to a socially sensitised judicial process.28
Society has a vital interest in grant or refusal of bail because every criminal
offence is an offence against the state. The order must reflect perfect balance
between the conflicting interests, namely, sanctity of individual liberty and the
interest of the society.29 These are especially harrowing times for those
arraigned before courts for suspected crime. The judiciary has shown itself to
be extremely tough, causing a lot of heart burning among those habitually
deviant. A vast majority of Indians welcome this, because far too many
criminals have been getting away with murder literally, because of either poor
police investigation or the capacity of the accused to buy up or intimidate
witnesses during a trial.
In a few states, ruling parties have been complicit in such misdeeds. On

occasion, lack of integrity among trial court judges has also been a problem.
27
D.C. Pandey, ―Criminal Law‖, XVI ASIL 452 et.seq. (1980) http://14.139.60.114:8080/jspui/
bitstream/123456789/673/6/The%20Concept%20and%20System%20of%20Bail.pdf
28
Justice V.R. Krishna Iyer in the Gudikanti Narasimhulu case, (1977), Gudikanti Narasimhulu and
Ors. v. Public Prosecutor,1978 AIR 429, 1978 SCR (2) 371.
29
Justice Dalveer Bhandari in S.S. Mhetre v. State of Maharashtra, (2010).
113
The Supreme Court and High Courts seem more than convinced now that
unless they intervened proactively, things could go out of control, and even the
slender respect for the law that we see often could totally snap. This is why the
higher judiciary has shown itself to be aggressive and has sent a decisive signal
down its hierarchy that it will not brook inconsistent rulings or unjustified
lenience towards those suspected of or charge sheeted for crime. The
subordinate judiciary has been quick to respond with some unusual rigour in
dealing with criminal matters brought before it. Substantial terms of
imprisonment by trial courts and their ready endorsement by appellate courts
mark a distinct trend that shows the Indian judiciary in good light. A lenient
sentence of six months to a molester and a rash and negligent automobile driver
who has killed several on the road could be things of the past. This decisive
change of stance towards offenders should have positive fallout by way of
deterring potential offenders. Victims of crime should in particular be happy,
especially those who have seen aggressors going scot-free right before their
eyes.30
There is, however, a flip side to the new phenomenon. There is an unexpressed
feeling among some that the judiciary is possibly too harsh and insensitive. The
enormous adulation that the judiciary has received from the media is cited by
them as a distraction that needs a cautious and balanced response while giving
rulings in the future. Those who plead for such a corrective are in a woefully
small minority. They, however, cannot be ignored if India is to be regarded as a
civilised nation, one that is characterised by mercy and poise. Any criticism of
the judiciary is not exactly a popular line to plug at a time when the whole
nation is in a rage over successive scams and people in high places making
unbelievable quantities of money at the cost of the taxpayer. Somebody has to
bring to the notice of the judiciary that there is a school of thought in the
country that stands for moderation, even if it means undeserved lenience to
those guilty or suspected of crime. Something that is germane to the debate on
30
D.C. Pandey, edited by S.K. Verma. Right to Bail, Indian Law Institute.
114
perceived distortions in judicial approach to the current venality in the country
is the amount of discretion enjoyed by the courts while responding to petitions
for bail. The press is lapping up recent events with great relish to the point of
being cruel to those locked up as a result of stern judicial orders. Not a word of
dissent or disapproval of Court orders has been heard, something that would
have revealed a certain logical evaluation of such orders. This is a disturbing
turn of events that needs introspection.
The current law on the subject of bail as incorporated in the Criminal

Procedure Code, gives courts a wide discretion in respect of those held in
judicial custody or who apprehend custody. A chronology of decisions since
the beginning of the Republic in 1950 is revealing. The pendulum has swung
from the lax and liberal approach to bail requests to the somewhat harsh
regimen now. This should send shivers down the spine of many in public life
who, until the other day, took the judiciary lightly to the point of being
furtively sarcastic and disrespectful. It is an entirely different matter that some
members of the judiciary themselves have given quarter to such irreverence
towards them. The former Chief Justice of India, S.H. Kapadia, has done
enough to drive home the message that he is no respecter of personalities and
that he will come down heavily on anyone straying from the path of virtue,
even if he or she belongs to the judiciary.31
One of the earliest pronouncements on the philosophy that should guide judges
while disposing of bail applications was by Justice V.R. Krishna Iyer. His plea
for a concern for fundamental rights, especially the right to individual freedom,
which needed to be blended with protection of public safety, set the tone for
judgments for several decades to come.32
It was the accepted proposition that as long as an applicant for bail posed no
threat to the lives and property of others, he deserved a lot of consideration.
31
Aiyer and Mitter‘s, 5th edition, Law of Bails Practice & Procedure.
32
Asim Pandey, Law of Bail, Practice and Procedure, 2nd edition, 2015, Lexis, Nexis, p. 432.
115
Combined with this was the need for an undertaking that he or she would in no
way tinker with the processes of law, such as destruction of vital evidence that
may not have come to the notice of the police or prosecution or intimidation of
those who were expected to depose before the court during the trial. If this
criterion was fulfilled to the satisfaction of the court, it invariably granted bail.
Of course, such an order came with a few restraints on the accused, and a
prescription that he or she should appear before the police at prescribed
intervals of time. Once the trial began, the accused was required to attend every
hearing without fail, unless there were convincing reasons for absence on a
particular day. Such a bail application was made invariably after the accused
had been arrested or charge-sheeted. The implication was that none could move
the court on mere apprehension of arrest. Then came the concept of
―anticipatory bail‖ in the form of Section 438 in the new code of 1973. The
objective was to take care of situations in which an individual feared being
taken into custody by the police in response to a frivolous complaint by a
vengeful adversary. This was a welcome relief to those who had suffered
shame and ignominy at the hands of unscrupulous members of society. 33
Voluminous case law has been built around the theory making anticipatory bail
a weighty concept that courts could use with great care to protect innocent
individuals. Distressingly, however, some judges began diluting the benefit of
Section 438 by making it mandatory for helpless applicants to subject
themselves to periodic appearances at police stations or Courts. There was also
a stipulation by some courts that an anticipatory bail would cease the moment a
charge sheet was filed in a case. This possibly curtails the freedom of an
individual, which was not contemplated by the lawmakers.
The whole subject came up for a review by the Supreme Court in the Sibbia
case34, when the Court said that ―Judges have to decide cases as they come
33
Ibid.
34
Gurbaksh Singh Sibbia v. State of Punjab, 1980 AIR 1632; 1980 SCR.
116
before them, mindful of the need to keep passions and prejudices out of their
decisions. And it will be strange if. We cut down the discretion so wisely
conferred, by devising a formula which will confine the power to grant
anticipatory bail within a straitjacket.‖
The Sibbia ruling implied that judges need not feel fettered by narrow concerns
and that they should interpret the law liberally so that no innocent person is
denied what is due in the form of an anticipatory bail. This was the line of
argument by the defence counsel in arguing for anticipatory bail of a
Congressman, S.S. Mhetre35, who was accused of involvement in a murder in
2009 and whose plea for anticipatory bail was turned down by the Bombay
High Court. In allowing the appeal, the Supreme Court (Justices Dalveer
Bhandari and K.P. Radhakrishnan) went largely by the Sibbia ruling and said
that any limitation on the validity of an anticipatory bail was not envisaged by
the legislature. At the same time, the Mhetre judgment laid down that the
discretion vested in the Court should be exercised with great care and
circumspection.
All recent court rulings on bail generally should be viewed against the
backdrop of the Mhetre ruling. The Courts have enormous discretion in
granting or refusing bail. It is this discretion that possibly explains the varying
standards applied in considering bail applications. The point is whether
differing perceptions have a deleterious impact on justice. It is difficult to
assess the impact because of the hugely varied circumstances that surround
each case. This is why we need a clinical study by legal scholars on how bail
applications are disposed of and whether discretion is exercised by Courts
under pressure from the media and a demanding public.
35
117
4.6 FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION
OF INDIA RELATING TO PROTECTION OF LIBERTY
The Constitution of India is a written Constitution and has been made flexible,
it has the features of both the unitary and federal systems of government
because under The Constitution of India, the supreme head of the government
is the president as in the American Constitution, and yet the government is
parliamentary as in Great Britain. The Moti Lal Nehru Report of 1929 had
made a demand for inclusion of a Bill of Rights in the Constitution to be
framed in the future.36
Prior to the Constitution of India, which came into force on 26 January, 1950,
there was no formal declaration of fundamental rights under the British rule but
the government of India Act, 1833 and thereafter the Government of India Act,
1915, contained some rudiments in the nature of fundamental rights of the
subjects.37
Fundamental rights are contained in several Articles 12-35 Part III of the
Constitution of India. In Golak Nath’s case38 it has been declared that
fundamental rights are natural rights in The Constitution itself. Bail was
not inserted in the Indian Constitution as a fundamental right, but by judicial
activism it has been implicit in Article 21 as component of personal liberty.
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.39
4.6.1 Article 14 of the Constitution of India and Bail
The Constitution of India is the supreme law of the land. The Fundamental
Rights are available to all the ―Citizens‖ of the country but a few of them are
36
37
Section 87 of the Act of 1833 and Section 96 of the Act of 1915.
38
L.C. Golaknath v. State of Punjab, (1967) 2 SCR 762: AIR 1967 SC 1643: 1967 (2) SCJ 486.
39
The Constitution of India, 1950.
118
also available to ―persons‖. While Article 14, which guarantees equality before
law or the equal protection of laws within the territory of India, is applicable to
―person‖ which include the ―citizen‖ of the country and ―non-citizen‖. This
reflects that the Indian Legal system does not bring the nationality of an
individual into consideration while granting him/ her benefit of the provisions
of bail. There is no discrimination or differentiation in granting bail to a foreign
national in India.40
4.6.2 Article 21 of the Constitution of India
Article 21 provides protection of life and personal liberty, the expression

‗personal liberty‘ occurring in Article 21 of the Constitution of India, has been
given a broad and liberal interpretation. Therefore, personal liberty would
include the right to socialise with members of the family and friends, subject,
of course, to any valid prison regulations. If any prison regulation or procedure,
regulating the right to have interviews with members of the family and friends,
is arbitrary or unreasonable, it would be liable to be struck down as invalid
being violative of Articles 14 and 21.41
Article 21, along with Articles 19, 20 and 21, forms one group namely right to
freedom. This article guarantees the most essential of all rights, viz., the right
to life and personal liberty. It applies to all persons and not only to citizens as
envisages in Article 19.42 Personal liberty, deprived when bail is refused, is too
precious a value of our Constitutional system, recognised under Article 21.
After all, personal liberty of an accused or convict is fundamental, and
suffering lawful eclipse should be only in terms of the procedure established by
law. The last four words of Article 21 are the life of the human rights.43 As was
40
Article 14 of the Constitution of India, 1950.
41
Francis Coaliemullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 (1981) 2 SCR
516: 1981 Cr LJ 306.
42
A.K. Gopalan v. State of Madras, 1950 SCR 88: AIR 1950 SC 27:1950 SCJ 174.
43
Babu Singh v. Sate of Uttar Pradesh, AIR 1978 SC 527 (529): (1978) 2SCR 177 (1978) 1 SCC 579:
1978 SCJ 135: 1978 Cr LJ 651.
119
held in Maneka Gandhi v. Union of India44, it is no longer permissible to
contend that the right to personal liberty can be curtailed even temporarily, by a
procedure which is not reasonable, fair and just when a statute itself provides
for a just procedures, it must be honoured. Conducting a search under Section
50, without intimating the suspect that he has a right to be searched before a
gazetted officer or a magistrate would be violative of the reasonable, fair and
just procedure, and the safeguard contained in Section 50 would be illusory.45
In cases arising under Article 21 of the Constitution, if it appears that a person

is being deprived of his life or has been deprived of his personal liberty, the
burden rests on the state to establish that the Constitutional validity of the
impugned procedure is not harash, cruel, or degrading. The burden does not lie
on the petitioner to prove that the procedure prescribed by impugned provision
for taking life is unjust, unfair or unreasonable. Therefore, as soon as it is
shown that the act invades a right guaranteed by Article 21, it is necessary to
enquire whether the state has proved that the person has been deprived of his
life or person liberty according to a procedure established by law, that is to say,
by a procedure which is just, fair and reasonable.46
The right to life enshrined in Article 21, cannot be restricted to mere animal
existence. It means something much more than just physical survival. The right
to life is not limited only to protection of limb or faculty. It includes the right to
live with human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and shelter over the
head, facilities for reading, writing and expressing oneself in diverse forms,
moving about freely and mixing and mingling with fellow human beings.
44
AIR 1978 SC 597(1978) 1 SCC 248 (1978) 2 SCR 621: (1978) 2 SCJ 312.
45
State of Punjab v. Baldev Singh, (1999) 6 SCCC 172: AIR 1999 SC 2378: 1999 Cr LJ 3672.
46
Deena Alias Deen Dayal v. Union of India, AIR 1983 SC 1155: 1983 Cr LJ 1602 1983 (2) Crimes
770 (SC).
120
Every act which offends or impairs human dignity would constitute deprivation
pro tanto the right to live.47
The guarantee under Article 21 is not only to citizens but also to a person, who
may not be citizen of a country. Thus, a tourist or any other person from a
foreign country is entitled for protection of their lives in accordance with the
Constitutional provisions. But these guarantees are not absolute but subject to
reasonable restrictions.48
The object of Article 21 is to prevent encroachment upon personal liberty by an

appropriate authority, except in accordance with law and in conformity with the
provisions thereof. In Bashira v. State of U.P.49, the Supreme Court held that
before a person is deprived of his life or personal liberty, the procedure
established by law must be strictly followed, and must not be departed from to
the disadvantage of the person affected. In same way Supreme Court in
Narender v. B.B. Gujral50, observed that whenever the liberty of the subject is
involved, whether under a penal law, or law of preventive detention, it is
bounden duty of the Court, to satisfy itself that ―all the safeguards provided by
the law have been scrupulously observed.‖ In Joginder Kumar v. State of Uttar
Pradesh51, the Supreme Court has given direction on the rights of arrested
person in light of Articles 21 and 22 of the Constitution of India. The Supreme
Court further held that ―the power of preventive detention by the government
under the conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974, is subject to the limitations enjoined in the exercise of
such power by Article 22(5) of the Constitution of India, as construed by this
Court.
This Constitution is all pervasive. All laws made by the State must, therefore,
yield to Constitutional limitations and restrictions. The citizen‘s right to
47
Frances Coralie Mullin v. W. C. Khambra & Ors, AIR 849 1980 SCR (2) 1095 1980 SCC (2) 275.
48
Asim Pandey, Law of Bail, Practice and Procedure, 2 nd edition, 2015, Lexis, Nexis, pp. 26-27.
49
AIR 1968 SC 1313: Cr LJ 1495: (1969) 1 SCR 32 (40).
50
AIR 1979 SC 420 (1979) 2 SCC 637: (1979) 2 SCR 315.
51
AIR 1994 SC 1349: (1994) 4 SCC 260: AIR SCW 1886.
121
personal liberty is guaranteed in Articles 21 and 22 of the Constitution of India
irrespective of his political beliefs, class, creed or religion. The court has
forged certain procedural safeguards in the case of preventive detention. These
safeguards might be designated as a regulative ―postulate of respect‖, i.e.
Respect for intrinsic dignity of human person.
4.6.3 Article 21 and Right to Bail
As per Article 21 of The Constitution of India no person shall be deprived of

his life or personal liberty except according to procedure established by law.52
An arrest or detention is a serious restriction on personal freedom guaranteed in
the Constitution. Arrest means restraint or deprivation of one‘s personal liberty.
An arrest implies taking into custody a person under the authority of law for the
purpose of holding or detaining him to answer a criminal charge or for
preventing the commission of a crime. Legally speaking arrest means to
deprive a person of his liberty by legal authority. Article 21 of the Constitution
of the India provides protection against arbitrary arrest or illegal detention. It
provides that no person can be detained in custody except under the authority
of law. It is important to point out here that even if a person has been arrested
under the authority of law, he has to be confined in custody for necessary
period for investigation of a crime or where there is chance of his absconding
or tempering with the course of justice. However, in order to protect the liberty
of a person, the Constitution of India and other secondary laws provide that a
person even during the investigation of the crime can be released on bail and he
can enjoy his personal freedom. Pre-trial detention of accused means
imposition of what amounts to punishment before determination of guilt. It
further affects his liberty and life and disturbs his family and employment or
business and obstructs in preparing the defence etc. The system of bail provides
for an interim release of an accused on surety. The surety is bound to produce
the accused on date of trial. Therefore, bail is an important factor in preserving
52
Article 21 of The Constitution of India, 1950.
122
the personal liberty of an individual. In technical sense, it is a security given for
the due appearance of accused in order to obtain his release from
imprisonment; a temporary release of an accused from detention. The term bail
has not defined under Code of Criminal Procedure, 1973 but the code enlists
the offences as bailable and non-bailable offences. According to Black‘s Law
Dictionary, ―What is contemplated by bail is to procure the release of a person
from legal custody, by undertaking that he/she shall appear at the time and
place designated and submit him/her self to the jurisdiction and judgment of the
Court.‖53
The object of the Article 21 of the Constitution is to prevent encroachment

upon personal liberty by the executive save in accordance with law and in
conformity with provisions thereof. When a person is deprived of his personal
liberty, the procedure established by law must be strictly followed. In case of
deprivation of one‘s liberty it is the duty of the court to satisfy itself that all the
safeguards provided by law have been scrupulously observed. The Supreme
Court, adopting a liberal approach, in Hussainara Khatoon v. State of Bihar54,
cautioned that pre-trail detention is not to be encouraged. If the Court is
satisfied after taking into consideration that the accused has his roots in the
community and is not likely to abscond, he can be released on his personal
bond.
While liberty of an individual is precious and there should always be an all-

round effort on the part of law courts to protect such liberties of individuals but
this protection can be made available to the deserving ones only since the term
protection cannot by itself be termed to be absolute in any and every situation
but stands qualified depending upon the exigencies of the situation. It is on this
perspective that in the event of there being committal of a heinous crime it is
the society that needs a protection from these elements since the latter are
having the capability of spreading a reign of terror so as to disrupt the life and
53
http://lawgupshup.com/2017/02/right-to-bail-Constitutional-aspects/
54
AIR 1979 SC 1369.
123
tranquilly of the people in the society. The protection thus is to be allowed
upon proper circumspection depending upon the fact situation of the matter.55
It is true that personal liberty guaranteed under Article 21 of the Constitution

includes all the freedoms conferred by Article 19(1)(a) to (g). But that is also
subject to reasonable restrictions and subject to the due process of law or
procedure established by law. It will not give unrestricted freedom in the sense
of immunity from arrest according to the due process of law.56A provision
which curtails personal liberty should be most strictly construed in favour of
the subject and the safeguards provided for protection of citizen‘s liberty must
be liberally interpreted and applied.57 Surely enough accused person‘s right to
personal liberty is important but in case of a conflict between accused person‘s
right of personal liberty and interest of public justice and welfare objectives of
society, the former should be subordinated to the latter.58 Liberty of a citizen is
undoubtedly of importance but the same has to be in a matter as of a serious
nature balanced with the security of the community.59 There is no gainsaying
the fact that a citizen‘s liberty should receive paramount consideration in all
situations and the same can be denied to him for very cogent reasons and only
when it absolutely necessary in the interest of justice and the bail provisions are
undoubtedly, designed to achieve the aforesaid objective.60 It is a settled
principle that before a person is deprived of his liberty, the procedure
established by law must be strictly and rigidly adhered to or followed and must
not be departed from to the prejudice of the person affected. The Court,
therefore, has to see whether the requirements of law and of procedure have
55
Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. 1476 : (2002) 3 SCC 598: 2002
SCC (Cri) 688.
56
Thayyanbadi Meethal Kunhiraman v. S.I. of Police, Panoor, 1985 Cri LJ 1111 at p. 1114 (Ker): 1985
Mad LJ (Cri) 263.
57
Mari Appa v. State of M.P., 1990 Cri LJ 1990 at p. 1992 (MP).
58
Shalini Rawat v. State, 1998 Cri LJ 1815 at pp. 1817-18 (Del) : Relying upon Babu Singh v. State of
U.P., AIR 1978 SC 527: (1978) 2 SCR 777: 1978 SCC (CRI) 133.
59
Delip Shankar Koli v. State of Maharashtra, 1981 Cri LJ 500 at p. 503 (Bom).
60
Jagjit Singh v. State of Punjab, 1978 Cri LJ 759 at p. 760 (P & H).
124
been satisfied in the case and whether the deprivation of the personal liberty is
according to the procedure established by law.61
The protection of Article is available to all persons arrested or detained be he a

citizen or a non-citizen. Such freedom also extends even to person convicted
subject only to the limitations imposed by his conviction under the law62. The
object of Article 21 is to prevent encroachment upon personal liberty by the
executive save in accordance with law and in conformity with provisions
thereof. Before a strictly followed and must not be departed from to the
disadvantage of the person affected.63
In Narendra v. Gujral64, the Supreme Court held that whenever the liberty of
the subject is involved whether under penal law of a law of preventive
detention it is the bounden duty of the Court to satisfy itself that all the
safeguards provided by law have been scrupulously observed. The expression
deprived according to the view expressed in Gopalan case has been used as
total loss of liberty and it has no application in case of a restriction upon the
right of free movement which comes under Article 19(1)(d). The above
restricted meaning of the word deprived has not been adhered to by the
Supreme Court in later decisions. The view expressed in Gopalan‘s case has
been modified by holding that when there is restriction of personal liberty
Article 21 is infringed.65
The expression personal liberty according to Gopalan‘s case means freedom

from physical restraint from physical restraint of person by incarceration of
otherwise. But in the later decisions the Supreme Court has abandoned the
meaning of personal liberty as given in Gopalan‘s case and in view of these
later decisions the ―personal liberty‖ includes all varieties of rights which go to
61
Khinvdan v. State of Rajasthan, 1975 Cri LJ 1984 at p. 1985 (Raj): 1975 WLN 132.
62
Sunil Batra v. Delhi Admn.1980 AIR 1579, 1980 SCR (2) 557.
63
Bashina v. State of Uttar Pradesh, (1969) SCR 3.
64
AIR 1979 SC 420.
65
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1925.
125
make up a person‘s liberty other than those which are already included in
several clauses of Article 19.66
Even the expression ―procedure established by law which was originally

interpreted by the Supreme Court in Gopalans‘s case as state made or enacted
law and not as an equivalent law embodying the principles of natural justice
yet gradually the expression has gone significant change in later Supreme
Court decisions. However in order to be a law it must be a valid law. In order
to be a valid law it must not only be a law enacted by a competent legislature
but also a law which does not violate other fundamental rights.67
Article 21 has a very wide scope and right to liberty has very large dimensions.
It includes many other aspects that make life worth living. Some other aspects
of life as discussed in Olga Tellis68 case. The Supreme Court observed, ―The
right to work is the most precious liberty because, it sustains and enables a man
to live and the right to life is a precious freedom. ―Life‖, as observed by Field,
J. in Munn v. Illinois69, means something more than mere animal existence and
the inhibition against the deprivation of life extends to all those limits and
faculties by which life is enjoyed‖.
Right to Live
Right to live means something more than ―mere animal existence‖, and
includes the right to live consistently with human dignity and decency even in a
rescue home and prison. So with societal interest we should also borne in mind
the individual liberty and right to life which only does not mean a right to life
but the ensurement of life with dignity.
66
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
67
Makhan Singh v. State of Punjab, AIR 1964 SC 381.
68
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
69
Field, J. in Munn v. Illinois, (1877) 94 U.S. 113.
126
In Sunil Batra v. Delhi Administration70, the Supreme Court held that it is no
more open to debate that convicts are not wholly denuded of their fundamental
rights. However, a prisoner‘s liberty is in the very nature of things
circumscribed by the very fact of his confinement. His interest in the limited
liberty left to him is then all the more substantial conviction for a crime does
not reduce the person into a non-person whose rights are subject to the whims
of the prison administration, and therefore, the imposition of any major
punishment within the prison system is conditional of the observance of
procedural safeguards.
Personal liberty of the person who is incarcerated is to a great extent curtailed

by punitive detention. It is even curtailed in preventive detention. The liberty to
move, mix, mingle, talk, share company with co-prisoners, if substantially
curtailed, would be violative of Article 21 of the Constitution of India, unless
the curtailment has the backing of law.
4.6.4 Article 22 of the Constitution
Protection against arrest and illegal detention in certain cases. Four principles
aimed at shielding personal freedom in preventive detention cases.
1. The detaining authority must provide the detune a very early opportunity
to make a representation.
2. The detaining authority must consider the representation as soon as

possible, and this, preferably, must be before the representation is
forwarded to the advisory boards.
3. The representation must be forwarded to the advisory board before the

board makes its report.
70
AIR 1978 SC 1675 (1978) 4 SCC 494: (1978) 1 SCR 392: 1978 Cr LJ 1741.
127
4. The consideration by the detaining authority of the representation must
be entirely independent of the hearing by the board, or its report,
expediency being essential at every stage.71
The Courts have also found that detention will be found to be justified only if it
was necessary in pursuit of a legitimate grounds such as, failure to attend trial,
interference with evidence or witnesses, obstruction of justice, risk of
committing an offence while on bail, be at harm or risk to oneself or others;
preventing the disruption of public order, reasonable suspicion of the committal
of the crime alleged against the accused, and gravity of the offence.
The right to liberty and right against arbitrary detention is found in UN

principles for the protection of all persons under any form of detention or
imprisonment, particularly in principle Nos. 9, 12, 13 and 36 (2) and in Rule 3
of United Nations Standard Minimum Rule for non-custodial measures.72
In Maneka Gandhi v. Union of India73, it was held that the procedure under
Article 21 must be just, fair and equitable. Before a person is deprived of his
life and personal liberty, the procedure established by law must be strictly
followed, and must not be departed from to the disadvantage of the person
affected.74 In the case of Joginder Kumar v. State of Uttar Pradesh75, the
Supreme Court has given directions on the rights of the arrested persons in the
light of Articles 21 and 22. Similarly, in Gudikanti Narasimhulu v. Public
Prosecutor, High Court of Andhra Pradesh76, Justice V.R. Krishna Iyer
observed that refusing bail deprives a person of ‗personal liberty‘ guaranteed
under Article 21. Granting bail is a great trust exercisable, not casually but
71
Jayanaryan Sukla v. State of West Bengal, (1970) 3 SCR 225 (232) AIR 1970 SC 675.
72
United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) Adopted
by General Assembly resolution 45/110 of 14 December 1990, http://www.ohchr.org/Documents/
ProfessionalInterest/tokyorules.pdf
73
AIR 1978 SC 597.
74
Bashira v. State of Uttar Pradesh, AIR 1968 SC 1313; See also Narendra Purshotam Umrao v. B.B.
Gujral, AIR 1979 SC 420.
75
AIR 1994 SC 1349.
76
AIR 1978 SC 429.
128
judicially, with lively concern for the cost to the individual and the community.
In Rajesh Ranjan Yadav v. C.B.I.77, Court remarked that while Article 21 is of
great importance, a balance must be struck between the right of liberty of the
person accused of an offence and the interest of the society.78 No right can be
absolute and reasonable restrictions can be placed on the exercise of the rights.
The grant of bail due to prolonged incarceration cannot be said to be an
absolute rule because the grounds of bail must depend upon the contextual facts
and circumstances.
4.6.5 Right to Speedy and Fair Trial
The right to a speedy trial can be said to be an extension of right to liberty,

security and protection against arbitrary detention and a precursor to the right
to be presumed innocent until proven guilty. This right is ubiquitous and is not
conditioned on any request or invocation of such right by the accused person.
Such accused is entitled to be produced before the court without undue delay in
order to enable the court to determine whether the initial detention is justified
and whether the accused must be released on bail. Both the ICCPR and the
ECHR provide that, releasing the accused on reasonable bail is the remedy for
failure to decide upon charges in an expeditious manner.79 In addition, Article 9
(3) of the ICCPR states that a detained person shall be brought before the
authorities promptly, and that the general rule is not detention. The US
Supreme Court has considered right to speedy trial within strict scrutiny, as it
has prescribed for the dismissal of the charges with prejudice as the ordinary
remedy for the violation of this right.80
In Hussainara Khatoon v. Home Secretary, State of Bihar81, the Supreme Court

ordered the release of under trial prisoners whose period of incarceration had
77
AIR 2007 SC 451.
78
M.R. Mallick, ―Bail: Law and Practice‖ 8 (Eastern Law House, Kolkata, 2009).
79
Available at http://lawcommissionofindia.nic.in/reports/Report268.pdf
80
Strunk v. United States, 412 U.S. 434 (1973).
81
AIR 1979 SC 1360.
129
exceeded the maximum period of imprisonment for their offences pointing
towards the failure of magistrates to respect Section 167 (2) which mandates
for the release of the under trial prisoners on the expiry of 60-90 days
respectively. Justice Bhagwati on the issue of right of speedy trial observed that
the under-trial prisoners languish in jail because they were downtrodden and
poor, and not because they are guilty. In Abdul Rehman Antulay v. R.S.
Nayak82, the Supreme Court laid down guidelines for speedy trial for all the
courts in the country:
 Fair, just and reasonable procedure implicit in Article 21 of the

Constitution creates a right in favour the accused to be tried speedily. It
is in the interest of all concerned that the guilt or innocence of the
accused is determined as quickly as possible in such circumstances;
 Right to speedy trial flowing from Article 21 encompasses all the stages
namely the investigation, inquiry, trial, appeal, revision and re-trial;
 The accused should not be subjected to undue or unnecessary detention
prior to his conviction;
 The worry, anxiety, expense and disturbance to his vocation and peace,
resulting from an unduly prolonged investigation, inquiry or trial should
be minimal;
 Undue delay may result in impairment of the ability of the accused to
defend himself, whether on account of death, disappearance or non-
availability of witnesses or otherwise; and
 However, it cannot be ignored that it is usually the accused who is
interested in delaying proceedings. Delay is a known defence tactic.
Since the burden of proving the guilt of the accused lies upon the
prosecution, delay ordinarily prejudices the prosecution. Moreover, non-
availability of witnesses, disappearances of evidence by lapse of time,
work against the interests of prosecution.
82
AIR 1992 SC 1701.
130
Thus, in relation to bail, the guarantee of speedy trial serves many objectives-
provides protection against oppressive pre-trial detention; relieves the person
accused of an offence of the anxiety and public suspicion due to unresolved
criminal charges, protects against the risk of loss of evidence, and enables such
accused to defend himself.83 A bail inquiry is a judicial process that has to be
conducted impartially and judicially and in accordance with statutory and
Constitutional prescripts.84 Paucity of funds or resources is no defence to denial
of right to justice emanating from Articles 21, 19 and 14 and the Directive.
Principles of State Policy Article 39A85, the basic objectives traditionally
ascribed to the institution of bail, is to ensure the presence of the person
accused of an offence at trial while maximising personal liberty in accordance
with the principles of the Constitution.86
4.7 RIGHT TO DEFAULT BAIL SECTION 167(2) AND DELAY

IN INVESTIGATION
The provisions of bail have been laid down under the Code of Criminal
Procedure, 1973. Bail vindicates the traditional right to freedom before the
guilt is proved, it permits unhampered preparation, and it permits unhampered
preparation of defences and prevents infliction of punishment before
conviction. Bail is a sort of trust reposed in the accused by the court, if it is
found that the accused has betrayed its trust in any manner or has misused the
liberty granted by the court, the beneficiary of bail makes himself disentitled to
this privilege. Law provides that where an investigation cannot be completed
within 24 hours fixed by Section 57 of the Code of Criminal Procedure, then
the case is to be referred to the magistrate. Section 167(2) of the Code
empowers the Magistrate to authorize the detention of an accused in such cases
as he thinks fit for a term not exceeding 15 days on the whole. But in order to
83
Ranjan Dwivedi v. CBI, Through the Director General, AIR 2012 SC 3217.
84
Majali v. S. (41210/2010) [2011] ZAGPJHC 74 para 33.
85
P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856.
86
S.V. Dlamini & Ors; S. v. Joubert; S. v. Schietekat, [1999] ZACC 8; 1999 (7) BCLR 771 (CC).
131
protect the personal freedom of an accused, it is provided that no Magistrate
shall authorize the detention of accused for more than 90 days in grave cases
and 60 days in less serious cases. When the period is expired, the court should
grant bail to the accused. The Supreme Court in Mantoo Mazumdar v. State of
Bihar87, held that on the expiry of the said period, the accused shall be released
on bail if he is prepared to and does furnish bail.
4.8 BAIL DEALING WITH TWO CONFLICTING INTERESTS
Bail walks the thin line between harmonizing the conflicting claims of
individual freedom and the interests of justice. While the objectives of trial and
thereby of arrest are of paramount importance to society, the grave
consequences of pre-detention trial have a negative impact on the accused
person since he/she may be presumed to be innocent in the Court of law but
subjected to physical and psychological deprivations that jail life carries.
Courts face a dilemma while adjudicating bail matters, best highlighted in the
words of Justice N. Talukdar and Justice A Banerjee: ―The Law of Bails, which
constitutes an important branch of the procedural law, is not a static one; and in
a welfare state, it cannot indeed be so. It has to dovetail two conflicting
demands, namely, on one hand, the requirements of the society for being
shielded from the hazards of being exposed to the misadventures of a person
alleged to have committed a crime; and, on the other, the fundamental canon of
criminal jurisprudence, viz., the presumption of innocence of an accused till he
is found guilty.‖ Bail has not been defined in the Code of Criminal Procedure
per se and is covered under Chapter XXXIII of the Code ―Provision as to bail
and bonds‖ under Sections 436-439.88 Broadly speaking, bail must be granted
in the following cases: If the person so arrested is not accused of committing a
non-bailable offence. If the investigation has not been completed within the
time prescribed for the same. If there are no reasonable grounds which exist to
believe or assume that the accused person is guilty of committing a non-
87
AIR 1910 SC 847.
88
The Code of Criminal Procedure, 1973.
132
bailable offence. If the trial before the concerned magistrate is not completed
before 60 days. If there are no reasonable grounds to believe that the accused
person is guilty after the completion of trial but before the judgment is
pronounced. In case of offences involving the commission of non-bailable
offences, the operative term is ‗may be released on bail‘ which brings it under
the component of higher juridical discretion. This discretion is again based on
multiple factors, mainly the facts and circumstances of each case. The decision
is always expected to be guided by law and the principle that bail is the rule
and refusal of it are the exceptions. Here is a look at some landmark judgments
under the law of bail and anticipatory bail before commenting on the direction
that the law has taken over the last few years. Sanjay Chandra v. C.B.I.89 The
case brought to the forefront the dilemma of a court hearing bail, being further
compounded in cases of economic offences that result in major losses to the
exchequer. The CBI‘s contention that witnesses may be influenced by the
appellants was disregarded by the Supreme Court on the grounds that
seriousness of the offence is not the only rule to guide the discretionary power
of the court while granting bail. The Court has to take simultaneous cognizance
of the punishment that maybe afforded to the accused person after trial and
conviction under the relevant statute, it ruled. The Supreme Court held that if
only the first rule of ‗seriousness of offences‘ is taken into account; the
Constitutional rights of the accused would be severely compromised. Bhagirath
Singh Jadeja v. State of Gujarat90, the Supreme Court established that very
cogent and overwhelming circumstances are necessary for an order seeking
cancellation of the bail as the trend today is towards granting bail. The reason
to back this was the well-settled position that the power to grant bail is not to
be exercised as punishment before trial. The material consideration to be taken
into account while evaluating the circumstances to cancel a bail is whether the
accused would be readily available for his/her trial and whether he/she is likely
89
Sanjay Chandra v. CBI, (2012) 1 SCC 40.
90
AIR 372 1984 SCR (1) 839 1984 AIR 372 1984 SCR (1) 839 1984 SCC (1) 284 1983 SCALE (2)
818.
133
to abuse the discretion granted in his/her favour by tampering with evidence,
the court ruled. Joginder Kumar v. State of U.P.91, in this case, the Supreme
Court reiterated its position of balancing individual rights and societal rights
under the question of arrest and bail. The Apex Court established that the
concerned authorities need to justify an arrest and not merely arrest in
furtherance of the power of arrest bestowed upon them. It was ruled that no
arrest can be made in a routine manner on a mere allegation of commission of
an offence made against a person. The Court further held that it would be
prudent for a police officer in the interest of protection of the Constitutional
rights of a citizen and perhaps in his own interest that no arrest should be made
without a reasonable satisfaction reached after some investigation as to the
genuineness and bona fides of a complaint. This, besides the reasonable belief
both as to the person‘s complicity and even so as to the need to effect arrest.
Aslam Babalal Desai v. State of Maharashtra.92 The Supreme Court held that
once a persons‘ liberty has been interfered with his arrest without a court‘s
order or a warrant, the investigation must be carried out with utmost urgency
and completed within the maximum period allowed under the Criminal
Procedure Code. This would be operative in law by ensuring that if the
prosecuting agency fails to show a sense of urgency in the investigation of the
case and omits or defaults to file a charge sheet within the time prescribed, the
accused would be entitled to be released on bail. The orders so passed in such
circumstances under Section 167 (2) would be deemed to be an order under
Section 437 (1) or (2) or of Section 439 (1). The rules for cancellation of such
bail will continue to operate as established under the Criminal Procedure Code,
it was held Shahzad Hassan Khan v. Ishtiaq Hasan Khan.93 The Supreme Court
laid down that when subsequent bail applications are made, after the first bail
application has been rejected, such applications should be placed before the
same judge who passed the earlier order of refusal. The reasoning behind the
91
AIR 1349,1994 SCC (2) 260.
92
Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC, 1, 1993 (1) ALT Cri 265, 1993.
93
1987 AIR 1613 1987 SCR (3) 34 1987 SCC (2) 684.
134
same was to prevent the abuse of the process of the court. GAMA v. State of
U.P.94, in the instant matter, it was laid down that bail may be applied for even
after it has been rejected in the first or subsequent instances. That there is no
provision for the operation of constructive res judicata in dealing with bail
applications was the view taken by the court. This is an extremely important
position of law which supports individual liberty as compared to the process of
the Court. Anticipatory Bail Siddharam Satlingappa Mhetre v. State of
Maharashtra95, in this case was a landmark judgment by the Supreme Court on
the law of anticipatory bail. The Apex Court highlighted the importance of life
and liberty as being inalienable Constitutional rights the upholding of which
was of paramount importance. It observed that the society has a vital interest in
grant or refusal of bail because ―every criminal offence is the offence against
the state‖. The order granting or refusing bail must reflect perfect balance
between the conflicting interests, namely, sanctity of individual liberty and the
interest of the society, the Court said. In light of these guiding principles, the
Supreme Court laid down ten parameters to be taken into consideration while
dealing with anticipatory bail. Gurbaksh Singh Sibbia v. State of Punjab96, the
Supreme Court took a very serious view on anticipatory bail applications by
persons belonging to the higher echelons of society in this case. It was held that
the power of the Court to grant anticipatory bail under Section 438 of the
Criminal Procedure Code must be used ―very sparingly and in exceptional
cases only‖. The discretion under Section 438 cannot be exercised with regard
to offences punishable with death or imprisonment for life unless the Court at
that very stage is satisfied that such a charge appears to be false or groundless,
the Apex Court ruled. The Court further reasoned that bail or anticipatory bail
cannot be granted to any person on the basis of his status in society as this
would be inequality. The Court‘s position in this case was a significant
departure from the earlier position on anticipatory bail. The principle of bail
94
1987 CriLJ 242.
95
2010 SC : 2010 4 MLJ Crl 745 SC.
96
1980 AIR 1632, 1980 SCR (3) 383.
135
and the colossal sanctity of individual liberty as enshrined by the Constitution
have been reaffirmed and emphasized by the Apex Court as well as the high
courts. To compile and recapitulate, the ratio accent of the law would be that
while bail is a rule, jail is an exception. The principles governing the discretion
vested with the upholders on the august bench may vary based on the facts and
circumstances of each case. However, the basic underlying consideration
remains that liberty of a citizen can be encroached only under due process of
law wherein the enforcement agencies are required to assign cogent reasons for
need to justify custodial interrogation and sustained detention at a pre-trial
stage which is otherwise punitive and against the principles of natural justice.
Further, in view of the reformative theory applied to the principles of
punishment, it has always been an approach to balance deterrent and punitive
theories vis-à-vis reformation of an accused and to keep them away from
hardened criminals in jail which are deemed to be universities of crime. The
broad considerations that may weigh in the minds of the judge while allowing
or refusing bail are the gravity of the offences alleged. The need for custodial
interrogation for lawful pursuit of investigation or for recovery, etc. The
chances of the accused fleeing from justice. The fears of tampering with
prosecution evidence or threatening witnesses. The criminal antecedents of the
accused, if any. With rising media awareness and human rights activism, there
is a constant watch that maintains the equilibrium between the individual
liberty on one hand and the interest of the society and victims of crime on the
other. However, one cannot ignore the pressure the media trials create on
courts, a fact that does not positively contribute to the rules of equity or justice.
It is imperative that adequate safeguards are built in to avoid abuse in case of
high pressure media trials. Majeed Memon noted criminal lawyer no
encroachment on personal liberty of a citizen in civil society governed by rule
of law could be justified unless there are compelling reasons for doing so. Pre-
trial arrest in any case needs to be invariably avoided unless it is specifically
found in a given case that interest of justice would suffer if arrest is not made.
136
However, after arrest by the investigating agency if the arrestee is brought
before judicial officer in the matters of bail, the question which the learned
judge from the lowest court to the highest court has to ask himself is not
whether I should grant bail or not, but whether I can refuse bail to the
applicant. Unless the judge is satisfied that there are compelling factors to deny
bail, liberty of the arrestee has to be resorted and bail be granted. This is in
keeping with the golden principle of ―bail is a rule and jail is an exception.97
The Personal liberty is of utmost importance in our Constitutional system

recognized under Article 21. Deprivation of personal liberty must be founded
on the most serious considerations relevant to welfare objectives of the society
as specified in the Constitution. The Apex Court of the country has laid down
in its judgments that ―Personal liberty, deprived when bail is refused, is too
precious a value of our Constitutional system recognized under Article 21 that
the crucial power to negate it is a great trust exercisable, not casually but
judicially, with lively concern for the cost to the individual and community. To
glamorize impressionistic orders as discretionary may, on occasions, make a
litigative gamble decisive of a fundamental right. After all, personal liberty of
an accused or convict is fundamental, suffering lawful eclipse only in terms of
procedure established by ‗law‘. Thus personal liberty is not curbed except in
accordance to the procedure established by law in order to strike a balance
between the right to individual liberty and the interest of society.98
―Bail‖ has been defined as: ―The process by which a person is released from
custody.”99
In the Indian legal system, the procedure of bail is provided in the Criminal
Procedure Code. Bail has not been defined in the code although the offences
are classified as bailable and non-bailable. In the former class, the grant of bail
97
Available at http://www.witnesslive.in/in-depth/176-bail-law-trends-a-judgments[reference].
98
http://www.mondaq.com/india/x/272954/trials+appeals+compensation/Bail+A+Matter+Of+Right+
Not+To+Be+Denied+On+The+Ground+Of+Nationality
99
Webster's Third New International Dictionary.
137
is a matter of course. It may be given either by the police-officer in charge of a
police station having the accused in his custody or by the Court. The release
may be ordered on the accused executing a bond and even without sureties. In
the latter class, the accused may be released on bail but no bail can be granted
where the accused appears on reasonable grounds to be guilty of an offence
punishable either with death or with imprisonment for life. But the rule does
not apply to a person under 16 years of age, a woman, a sick or infirm person.
As soon as reasonable grounds for the guilt cease to appear, the accused is
entitled to be released on bail or on his own recognizance; he can also be
released, for similar reasons between the close of the case and delivery of
judgment. When a person is released on bail the order with reasons therefore,
should be in writing.
4.9 BAIL TO FOREIGN NATIONALS
The Indian courts have umpteen number of times held that merely because the
accused is a foreign national he cannot be deprived of the benefits of bail. The
Hon‘ble High Court of Delhi had observed that ―Law does not permit any
differentiation between Indian Nationals and Foreign citizens in the matter of
granting bail. What is permissible is that, considering the facts and
circumstances of each case, the court can impose different conditions which are
necessary to ensure that the accused will be available for facing the trial. It
cannot be said that an accused will not be granted bail because he is a foreign
national‖. In the case of Mohammed Kunju, the accused was a foreign national.
When he was granted bail, he jumped it and slipped out of India. As a result,
legal action against his sureties for levy of the penalty under their forfeited bail
bonds was initiated. That action was challenged by the sureties before the
Hon‘ble Supreme Court of India Court. While dealing with the legality or
otherwise of the said legal proceeding against sureties, an observation was
made by Hon‘ble Supreme Court observed that while granting bail to the
accused foreign national, the Court could have imposed the condition to
138
surrender his passport as a measure to prevent him to escape out of India. Thus,
the Indian courts while granting bail to a foreign national firmly believes in
imposing certain conditions like surrender of passport, bail bonds, attendance
before consulate or the investigating officer, etc. in order to prevent misuse of
the provision as there may be chances of the accused absconding after getting
bail.
The Hon‘ble High Court of Delhi in the case of Lambert Kroger v.

Enforcement Directorate100, while allowing the bail application of the foreign
national made an observation that ―Admittedly the petitioner‘s passport is with
the respondent and ordinarily the petitioner cannot leave the country without
the passport. Though the possibility of fleeing from trial may be more in the
case of foreign national. It cannot be said that an accused cannot be granted
bail merely because he is a foreign national. There is no law which authorizes
or permits discrimination between a foreign national and an Indian national in
the matter of granting bail what is permissible is that, considering the facts and
circumstances of each case, the Court can impose different conditions to ensure
that the accused will be available for facing trial‖.
In Sartori Livio’s case101, the counsel for the state raised an argument stating
that the petitioner is an Italian national and if he is released on bail, there is
every likelihood that he may flee from justice. The Hon‘ble High Court by
relying on the judgment in Nasimjon Komlov v. Customs102, observed that ―it
would be a shame if courts are going to keep persons incarcerated merely
because they are of foreign origin even though prima facie no case is made out
against them. This would be a negation of valued principles of rule of law and
vocative of the Constitutional mandate and principles of human rights‖. The
Court further held that just because a foreign national is involved, it does not
mean that he is to be denied the benefit of bail. In this case the Court released
100
2000 85 (2000) DLT 62.
101
Sartori Livio v. The State, 118 (2005) DLT 81.
102
Nasimjon Komlov v. Customs in CRLM (M) No. 2038/2000.
139
the petitioner on bail on furnishing a personal bond in the sum of Rs. 25,000/-
with one surety of the like amount to the satisfaction of the concerned trial
court. The Court also directed the petitioner to deposit his passport in the
custody of the investigation officer and not to leave the National Capital
Region without the prior permission of the concerned Court. In Haroub Slaum
Sleyoum103, the Hon‘ble High Court of Delhi reiterated the law on bail to a
foreign citizen.
The Court observed that ―While considering an application for grant of bail,
various factors are to be taken into consideration, such as, the nature and
seriousness of the offence, the stage of investigation, a reasonable possibility of
the presence of the accused not being secured at the trial, a reasonable
apprehension of evidence being tampered with or such other circumstances
which may be brought to the notice of the court which might hamper proper
investigation into the matter‖. The court after considering the facts of the case
held that ―I find force in the submission of learned counsel for the petitioner
that merely because the petitioner is a foreign national this by itself cannot be a
ground for declining the bail. No special circumstances have been shown to
this court to show that the petitioner is likely to interfere with course of justice
nor any material to show that there are strong reasons that the petitioner is
likely to leave the country. Accordingly, I have considered it a fit case to grant
bail and release the petitioner.‖
The fact that the general rule is ―Bail Not Jail‖. The Indian Legal system does
not create any discrimination or differentiation between Indian Nationals and
foreign nationals when it comes to granting bail. The Indian Courts have in
catena of judgments rejected the ―foreign national‖ plea and have allowed the
bail applications of the foreign nationals by imposing certain conditions in
order to secure their presence during the course of trial. The fundamental right
to ―equality before law‖ provided by the Constitution of India is not denied to
103
Haroub Slaum Sleyoum v. Shri Abdul Qudir (2005) DLT 81.
140
the foreign nationals merely on the ground of they being non- citizens of this
country. For Indian legal system the ―right to personal liberty‖ of foreign
nationals is equally important as that of the Indian nationals and the same is
curbed when the security of the society is put at stake.
4.10 HABEAS CORPUS
The preamble of our Constitution contains the ideals and aspirations or the
objects which the Constitution-makers intended to be realised by its enacting
provisions. And for that matter, the preamble of a statute is often described as a
key to understand it. It may legitimately be consulted to solve an ambiguity or
to ascertain and fix the meaning of the words in their context which otherwise
bear more meanings than one. It may afford useful assistance as to what the
statute intends to reach. Observed by the Supreme Court in A.C. Sharma v.
Delhi Administration.104
The Constitution of India mentions the writ of habeas corpus in Articles 32 and
226. The writ ordinarily issued for the object to secure the release of a person
found to be detained illegally. In case of Additional Secretary v. Alka Gadia105,
the court held that the writ of habeas corpus is applied only after a person is
arrested.
In the year 1950, in A.K. Gopalan v. State of Madras106, the Supreme Court
was approached to clarify the interpretation of the Preamble of the
Constitution. It was contended that the preamble to our Constitution which
seeks to give India a ―democratic‖ Constitution should be the guiding star in its
interpretation of India and thus any law made under Article 21 of the
Constitution of India should be held as void, if it offended against the
principles of natural justice.
104
AIR 1973 SC 913: (1973) 1 SCC 726: 1973 CrLJ 902.
105
(1990) 2 SCALE 1352.
106
AIR 1950 SC 27: 1950 SCJ.174: 1950 SCR 88.
141
In the post Gopalan’s case the Supreme Court visibly is inclined to take a
larger cognizance of the preamble as setting forth the goal of our political
society, so that it may be invoked to determine the ambit of Fundamental
Rights and the Directive Principles contained in the Constitution.
Article 21 of the Constitution guarantees protection of life and personal liberty

for every citizen in the country. It reads- ―No person shall be deprived of his
life or personal liberty except according to procedure established by law‖.
In Kiran v. State of Andhra Pradesh107, the Supreme Court held that the court is
not powerless to interfere with an imminent threat to the freedom of life or
personal liberty of an individual. It further held that it must not wait until the
person has actually been taken into custody.
The law provides that no person can be detained in police custody for more
than twenty-four hours. In case he is required to be detained for more period,
he has to be produced before the concerned Magistrate, for the extension of
time of his detention. In case the police does not produce that person within
twenty-four hours of the arrest, that will amount to an illegal detention. The
remedy lies by way of writ habeas corpus under Article 226 of the Constitution
of India to be filed in the High Court.
Section 57 of the Code of Criminal Procedure, 1973 provides that no police

officer shall detain in custody a person arrested without warrant for a longer
period than under all the circumstances of the case is reasonable, and such
period shall not, in the absence of a special order of a Magistrate under Section
167, exceed twenty-four hours exclusive of the time necessary for the journey
from the place of arrest to the Magistrate‘s Court.
According to Article 22(2) of the Constitution of India, every person who is

arrested and detained in custody shall be produced before the nearest
107
(1990) 1 SCC 282.
142
Magistrate within a period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest to the Magistrate and no
such person shall be detained in custody beyond the said period without the
authority of a Magistrate.
Section 167 of the Code of Criminal Procedure, 1973 provides that whenever
any person is arrested and detained in custody, and it appears that investigation
cannot be completed within the period of twenty-four hours fixed by Section
57, and there are grounds for believing that the accusation or information is
well-founded, the officer-in-charge of the police station or the police officer
making the investigation, if he is not below the rank of sub-inspector, shall
forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the
diary hereinafter prescribed relating to the case and shall at the same time
forward the accused to such Magistrate.
4.10.1 When Writ of Habeas Corpus Lie
Any illegal detention attracts writ of habeas corpus in the High Court under
Article 226 of the Constitution of India and in the Supreme Court under Article
32 of the Constitution of India. Right to life as provided under Article 21 of the
Constitution of India is the most precious right guaranteed to every citizen, and
in case of its violation by any authority, is at once remedied by the courts of
our country including the Supreme Court, when approached by way of writ of
habeas corpus.
Quoting Backstone, in his book ‗Right to Life and Liberty under the
Constitution‘, Justice B.L. Hansaria (formerly Hon‘ble Judge of the Supreme
Court) observes that the writ of habeas corpus is the great and efficacious writ
in all manner of illegal confinement.
143
4.10.2 Significance of Writ of Habeas Corpus
Highlighting the significance and efficacy of the writ of habeas corpus, Lord
Denning said-
―Whenever one of the King‘s Judges takes his seat, there is one
application which by long tradition has priority over all others.
Counsel has but to say, ‗My Lord I have an application which
concerns the liberty of the subject‘, and forthwith the judge will
put all other matters aside and hear it. It may be an application for
writ of Habeas Corpus or an application for bail, but whatever
form it takes, it is first heard‖.
The Indian Judiciary has not lagged behind; the courts of our country,
particularly the Apex Court has given new dimensions and created a new
jurisprudence in cases where the fundamental rights of the citizens were
disturbed in violation of the Constitution. With humility and great
indebtedness, the author takes the liberty to mention a few cases, from the book
of the Hon‘ble Mr. Justice B.L. Hansaria, which throw a flood of light on the
writ of habeas corpus.
The history of the writ of habeas corpus has been dealt in detail by a
Constitution Bench in Kanu Sanyal v. District Magistrate.108 It was described
as a writ of immemorial antiquity, whose first threads are woven deeply within
the ―seamless web of history‖ and untraceable among countless incidents that
constituted a total historical pattern of Anglo Saxon jurisprudence. Some
writers even found the magna carta provision prohibiting imprisonment
without due process of law as the direct ancestor of this writ–the direct heritage
may be debatable but indirect connection is not. The primary object of the writ
was said to be the immediate determination of the right of the applicant's
freedom-that was its substance and its end.
108
AIR 1974 SC 510: (1974) 4 SCC 141: (1974) 3 SCR 279: (1974) Cr LJ 465.
144
It was stated in Ranjit Singh v. State of Pepsu109, that the whole object of this
writ is to keep law as free from technicality as possible and to keep them as
simple as permissible, as otherwise the incalculable value of this writ will be
lost.
This writ has been described as a writ of right which is granted ex debito
justitiae.110 Though a writ of right, it is not a writ of course. The applicant must
show a prima facie case of this unlawful detention. Once, however he shows
such a case and the return is not good and sufficient he is entitled to this writ as
of right. This writ can be issued in case of ―counterfeited release‖ also, so too,
when there is a pretended ignorance of the place of custody or identity of the
custodian as stated in Barnardo v. Ford.111 Following this decision, the Gauhati
High Court took tile same view in N.N.C. Onghi Devi v. Rishang Keshing.112
The writ of habeas corpus is a prerogative writ of highest constitutional

importance, being a remedy available to the meanest against the mightiest. In
Sunil Batra v. Delhi Administration113, it was held that the essence of the
matter is that in our era of human rights consciousness, the habeas corpus writ
has functional plurality and the constitutional regard for human decency and
dignity is tested by this capability. Insofar as approach to the court is
concerned, anybody acting pro bono publico can knock the door of the Court
for his relief.
4.10.3 Compensation for Illegal Detention
If a person is wrongfully confined or illegally detained by the police or any

other authority, he is entitled for compensation. This has been held so by the
Apex Court in various judgments delivered from time to time. As wrongful
109
AIR 1959 SC 843: 1959 SCJ 905: 1959 Cr LJ 1124.
110
Latin Maxin meaning: as of right. A matter ex debito justiciae is one which a litigant is entitled
merely upon the asking for it, as opposed to something which may be a matter of judicial
determination.
111
1891 (4) All ER Rep 522.
112
1982 (1) GLR 756.
113
AIR 1980 SC 1579: (1980) 3 SCC 488: (1980) 2 SCR 557: (1980) Cr LJ 1099.
145
detention is directly violation of fundamental right of personal liberty, if any
person detailed without following due process of law i.e., a direct violation of
his fundamental right provided under Article 21 of the Constitution. As when
detention is there that means restrictions upon the liberty of a person and in that
is compensation in money can not restore his liberty.
In Rudal Shah v. State of Bihar114, the Supreme Court directed the State to pay
a compensation of Rs. 35,000 for illegally keeping the victim for 14 years more
than the punishment awarded to him. The Apex Court also held that a
compensation awarded by a writ Court in such a case does not prevent the
person concerned from bringing a suit to recover appropriate damages.
In Bhim Singh v. State of Jammu and Kashmir115, the Supreme Court awarded
compensation to the tune of Rs. 50,000, for wrongfully detaining an MLA to
prevent him from attending the Assembly session.
Even wrongful handcuffing was compensated in State of Maharashtra v.

Ravikant S. Patil116, by awarding a sum of Rs. 10,000.
Recently, in Nilabati Behera v. State of Orissa117, a mother was awarded

compensation of Rs. 1.5 lakh, whose son had died in police custody. This
incident took place in the State of Orissa. The high compensation was
described as ―exemplary damages‖. While awarding compensation the Apex
Court observed that forging of ‗new tools‘ had become necessary for doing
complete justice.
The habeas corpus is entertained as a writ only after the Court is satisfied on
the following grounds, namely:-
114
AIR 1983 SC 1086: (1983) 4 SCC 141: (1983) 3 SCR 508: 1983 Cr LJ 1644.
115
AIR 1986 SC 494: 1986 Cr LJ 192: (1985) 4 SCC 677.
116
(1991) 2 SCC 373: 1991 AIR SCW 871: (1991) Cr LR 261.
117
(1993) 2 SCC 746: AIR 1993 SC 1960: (1993) 2 SCJ 487.
146
(1) The order of detention is not passed under the Act under which it
purports to be passed.
(2) It is passed against a wrong person.
(3) It is passed for a wrong purpose.
(4) It is passed on vague, extraneous and irrelevant grounds.
(5) The officer purporting to pass the order has no authority in law, to make
the order.
4.11 CONSTITUTIONAL SANCTITY OF BAIL UNDER

SECTION 437 OF CODE AND ARTICLES 21, 22, 227 OF
CONSTITUTION OF INDIA
Liberty occupies a place of pride in our socio-political order, and who knew the
value of liberty more than the founding fathers of our Constitution whose
liberty was curtailed time and again under the draconian laws of the colonial
rulers. That is why they provided, in Article 21 of the Constitution, that no
person shall be deprived of his personal liberty except according to the
procedure established by law .it follows therefore that the personal liberty of an
individual can be curbed by a procedure established by law. The Code of
Criminal Procedure 1973 is one such procedural law. That law permits
curtailment of liberty of anti-social and anti-national elements. Article 22 casts
certain obligations on the authorities in the event of the arrest of an individual
accused of commission of crime against the society or the nation. In the case of
under trials charged with commission of an offence or offences the court is
generally called upon to decide whether to release him on bail or to commit
him to jail. This decision has to be made mainly in non-bailable cases. Having
regard to the nature of the crime, the circumstances in which it was committed,
the background of the accused, the possibility of his jumping bail, the impact
147
his release may have on the prosecution witnesses, its impact on the society and
possibility of retribution, etc.118
Significance and sweep of Article 21 makes the deprivation of liberty matter of

grave concern, if public justice is to be promoted, mechanical detention should
be demoted. All deprivation of liberty is validated by social defence and
individual correction along an anti-criminal direction. If there is threat to the
life of the accused, the paramount need is to give him the bail and keep him in
jail for his own security reasons. Liberty of a citizen has to be zealously
safeguarded, particularly when his release from the jail is not posing any threat
to public at large.119 The Sessions Court‘s view that bail has to be refused to the
petitioner as there is a serious threat to his life, if he comes out of the jail, is not
in keeping with the provisions contained in Article 21 to the Constitution of
India. If the release of the accused is posing a threat to the security of the
society, then it has to be denied to him, but not the converse of the same. If he
is otherwise entitled to be released on bail, there is no reason why it should be
denied to him merely because his presence outside the jail would invite threat
to his life.120
The courts normally declines bail in cases of offence punishable with death or
imprisonment for life since the severity of punishment is itself a factor as to
induce the accused to flee from justice. Pre-trial detention has a purpose and
policy behind it and the issue of bail or jail has to be decided by the Court on
relevant criteria and not on emotionally appealing but legally impertinent
circumstances.
The Court considering the bail application must have some materials before it
from which it would be satisfied that the apprehension that the accused would
tamper with the evidence if released on bail is genuine. Only because some
118
State of Maharashtra v. Capt. Buddhikota Subba Rao, (1989) 26 ALL Cr Cas 603 (606) (SC) : AIR
1989 SC 2292 : (1989) CR. LJ 2317: 1989 (4) SC 1.
119
120
Atul Rao v. State of Karnataka, 2009 Cr LJ 634 (Kant HC: 2009 (74) ALL Ind Cas 402: ILR 2008
Kant (4763).
148
allegations are made that if released on bail, the accused would tamper with
evidence may not be sufficient for the Court to refuse the bail to the accused
person. That the refusal of bail is a serious matter because the liberty of a
citizen of India is interfered with when the bail is refused.
Thus, the liberty of the individual has been safeguarded by the modern
Constitutions of all civilised countries. The rights of personal freedom,
protection of one‘s life and limb and of one‘s good name are as well –
recognised in India as in other countries. The right to be at liberty is a valuable
right and when an application is given for bail, it is this valuable right that the
accused person seeks from the Court.121
4.12 MANDATE TO GRANT BAIL IN BAILABLE CASES
The right to claim bail granted by Section 436 of the Code in a bailable offence
is an absolute and indefeasible right. In bailable offences, there is no question
of discretion in granting bail as the words of Section 436 are imperative. The
only choice available to the officer or the Court is as between taking a simple
recognizance of the accused and demanding security with surety. There is no
manner of doubt that bail in a bailable offence can be claimed by accused as of
right and the officer or the Court, as the case may be, is bound to release the
accused on bail if he is willing to abide by reasonable conditions which may be
imposed on him.122 When an accused person is arrested for a bailable offence
and he is prepared to give bail, he shall be released on bail.123 Every person
accused of a bailable offence has a right to be released the person accused of a
121
122
Rasiklal v. Kishore Khanchand Wadhwani, AIR 2009 SC 1341 (para6) : (2009) 4 SCC 443; Vaman
Narain Ghiya v. State of Rajasthan, AIR 2009SC 1362 : (2009) 2 SCC 281; Talab Haji Hussain v.
Madhukar Purshottam Mondkar; AIR 1958 SC 376 : 1958 Cr LJ 701 : 1958 SCR 1226 (paras
1,6,10,12); Jhony Wilson v. State of Rajasthan, 1986 Cr LJ 1235 (Raj) (DB); Sukar Narayan Bakhia
v. Ranikant R. Shah, 1982 Cr LJ 2148 (Guj). (Page no. 43 Asim).
123
Union of India v. Sant Prakash Bhagwandas, 1969 MLW (Cr) 88. P.V. Ramakrishna, Law of Bails,
9th edition, 2016, Universal Law Publishing, p. 77.
149
bailable offence on bail and not to detain him.124 As soon as it appears that the
accused person is prepared to give bail, the police officer or the Court before
whom he offers to give bail, is bound to release him on such terms as to bail as
may appear to the officer or the Court to be reasonable.125
In a bailable offence, the only choice for the Court is between taking a simple
recognized of the principle offender and demanding security with surety.
Ordinarily, the word ‗bail‘ applies to the second kind of security according to
the practice and procedure of courts. The criminal Court has no discretion in
bailable offences while granting bail under Section 436 to impose any
condition except demanding security with sureties.126
A reading of Section 436(1) of the code would clearly indicate that, in the first
instance, a person charged of a bailable offence is entitled to bail as a matter of
right. The area of discretion being that the Court may release the person merely
on executing a bond without surety for his appearance instead of taking bail
from such a person when a person is indigent and is unable to furnish surety127
Section 436 is meant for any person who is arrested or brought before the Court
except a person accused of non-bailable offence. The section is not limited to
persons accused of a bailable offence and is applicable to chapter VIII except
the provisions specially excluded. Thus, a magistrate holding an inquiry under
Section 110 can, under Section 436, compel the person proceeded against to
execute a bond for his appearance during the inquiry. The absence of a specific
form for the purpose is no ground to hold otherwise.128 In the case of bailablre
124
Sukar Narayan Bakhia v. Rajnikant R. Shah, 1983 (1) Cr. L.C. 474 at pp. 478-479 (Guj.): 1983 Cr.
L.R. 118 : 1983 (1) 24 Guj. L.R. 531. Aiyer and Mitter‘s, 5th edition, Law of Bails Practice &
Procedure, p. 349.
125
Asim Pandya, Second Edition, 2015, Law of Bail Practice and Procedure. Lexis Nexis. Asim
Pandaya, p. 43.
126
District Magistrate, Vishakhapatnam (in re;), AIR 1949 Mad 77; (1948) 1 Mad LJ 332: 1948 Mad
WN 368: 49 Cr LJ 640 at P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law
Publishing, p. 77.
127
Aiyer and Mitter‘s, 5th edition, Law of Bails Practice & Procedure, p. 349.
128
Syed Chunnarshah v. State of Maharashtra, 1971 Mah LJ 237 at P.V. Ramakrishna, Law of Bails,
9th edition, 2016, Universal Law Publishing, p. 78.
150
offences, to which Section 436 applies, a police officer has no discretion at all
to refuse to release the accused on bail, so long as the accused is prepared to
furnish surety. Thus, the appellant and his brother were prosecuted under
Sections 294 and 323 of the IPC and under Sections 24 and 25 of the Cattle
Trespass Act. All the offences are bailable and under the law the accused
persons had the right to be released on bail.129
Under the Indian Constitution, the Rule of Law is perceived as an

indispensable tool to avoid discrimination, and arbitrary use of force. The
present system of bail is heavily influenced by economic status and
discriminates against the impoverished and the illiterate. Our judicial system
seems to have evolved two approaches to bail—bail as a right for the
financially able; and for rest, bail is dependent on the judicial discretion,
exercised through manipulation of the amount of ―reasonable‖ bail that will be
required. Often the criteria for setting bail amounts fails to take into account the
accused person‘s ability to pay, hence, the loss of liberty is imminent in the
pre-trial detention. Accused person‘s economic status appears to have become
the decisive factor for granting pre-trial release.130
In this chapter after discussing the constitutional provisions relating to bail,

researcher reach in the conclusion that the personal liberty of individual which
granted by our Constitution as fundamental right and on other side the societal
interest, a balance need to be drawn in a judicious manner. Bail is a right and
refusal is an exception. However, the Courts can impose the conditions while
granting bail. But the conditions should not be unreasonable. Courts have also
power to cancel bail. But power to cancel bail in non-bailable offences must be
used sparingly. It is the duty of the Magistrate to dispose of the bail application
as early as possible. Police and the Magistrate have been given power to grant
bail under Criminal Procedure Code. However, in bailable offences, bail can be
129
Dharmu Naik v. Rabindra Nath Acharya, 45 Cut LT 348.
130
Bail and Its Discrimination Against the Poor: A Civil Rights Action as a Vehicle of Reform, 9 Val.
U. L. Rev. 167 (1974).
151
claimed as a matter of right. Police or Magistrate has no discretion in this
regard. However, police uses discretion in granting bail as the people are not
aware of statutory provisions. There is urgent need to impart awareness in this
regard so that police may not misuse its powers for extraneous considerations.
152

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CHAPTER – IV

CONSTITUTIONAL PROTECTION AND CONCEPT

As Liberty occupies a place of pride in our socio-political order. Who could

4.2 FUNDAMENTAL RIGHTS AND BAIL: CONCEPT IN

1. The right of personal security.

2. The right of personal liberty.

3 Right of private property.6

4.3.1 Due Process of Law

4.4 FUNDAMENTAL RIGHTS UNDER THE BRITISH

There is no written Constitution in England and there is no declaration of

The fundamental difference in the concept of individual liberty between

4.5 PROTECTION OF PERSONAL LIBERTY

Deprivation of liberty must be considered a punishment, unless it can be

4.5.1 Relevance and Importance of Personal Liberty

According to Dicey means ―the right to personal liberty as understood in

4.5.2 Nexus between Bail and Liberty

The requirement of the law to enlarge a person on bail is an expressive concern

(b) Where it is delivered to the surety.

(c) Where it may be delivered to the state for safe custody.

4.5.3 Liberty of Individual and Concept of Bail

In a few states, ruling parties have been complicit in such misdeeds. On

The current law on the subject of bail as incorporated in the Criminal

4.6.1 Article 14 of the Constitution of India and Bail

4.6.2 Article 21 of the Constitution of India

Article 21 provides protection of life and personal liberty, the expression

In cases arising under Article 21 of the Constitution, if it appears that a person

The object of Article 21 is to prevent encroachment upon personal liberty by an

4.6.3 Article 21 and Right to Bail

As per Article 21 of The Constitution of India no person shall be deprived of

The object of the Article 21 of the Constitution is to prevent encroachment

While liberty of an individual is precious and there should always be an all-

It is true that personal liberty guaranteed under Article 21 of the Constitution

The protection of Article is available to all persons arrested or detained be he a

The expression personal liberty according to Gopalan‘s case means freedom

Even the expression ―procedure established by law which was originally

Personal liberty of the person who is incarcerated is to a great extent curtailed

4.6.4 Article 22 of the Constitution

2. The detaining authority must consider the representation as soon as

3. The representation must be forwarded to the advisory board before the

The right to liberty and right against arbitrary detention is found in UN

4.6.5 Right to Speedy and Fair Trial

The right to a speedy trial can be said to be an extension of right to liberty,

In Hussainara Khatoon v. Home Secretary, State of Bihar81, the Supreme Court

 Fair, just and reasonable procedure implicit in Article 21 of the

4.7 RIGHT TO DEFAULT BAIL SECTION 167(2) AND DELAY

4.8 BAIL DEALING WITH TWO CONFLICTING INTERESTS

The Personal liberty is of utmost importance in our Constitutional system

4.9 BAIL TO FOREIGN NATIONALS

The Hon‘ble High Court of Delhi in the case of Lambert Kroger v.

4.10 HABEAS CORPUS

Article 21 of the Constitution guarantees protection of life and personal liberty

Section 57 of the Code of Criminal Procedure, 1973 provides that no police

According to Article 22(2) of the Constitution of India, every person who is

4.10.1 When Writ of Habeas Corpus Lie

The writ of habeas corpus is a prerogative writ of highest constitutional

4.10.3 Compensation for Illegal Detention

If a person is wrongfully confined or illegally detained by the police or any

Even wrongful handcuffing was compensated in State of Maharashtra v.

Recently, in Nilabati Behera v. State of Orissa117, a mother was awarded

(2) It is passed against a wrong person.

(3) It is passed for a wrong purpose.

(4) It is passed on vague, extraneous and irrelevant grounds.