Jail or Bail -Which should be a proper rule?

introduction
The Law of a country governs its people, towards the realization of what can be termed as
“greater good” or in other parlance “Justice”. Austin, one of the pioneers of Jurisprudential
theories often stated “The positive law equally with the moral sets up duty; the moral law equally
with the positive implies an actual force and a sanction.1 Thus according to Austin, the man-
made laws- Positivist law has 4 main elements, Command, Sanction, Duty and Sovereignty. The
upholding of Sovereignty requires a command, this command by the state imposes a duty upon
the subjects, if such a duty is breached and then the sovereign has all the rights to impose a
sanction. So a sanction is quintessentially a fundamental driving force behind the application of
sovereignty. We often see sanctions as a part of sovereign actions, that these sanctions comprise
of imprisonment, penalties such as monetary, compensatory and as well as Death Penalty. There
are different types of sanction in different laws. For example an act of theft in sharia law offers a
punishment of cutting off the hands of such thieves.2Similarly, in a common law, Theft attracts
punishment such as imprisonment of certain period and a penalty comprising of certain fine, or
both. So sanction differs with law; however the presence of sanction for imposing a sovereign act
or a protector of rights is implied. Imprisonment is a form of sanction that has been formidable
over the years.

Rationale behind Imprisonment

Imprisonment over the years has been remarked as the worst form of punishment. Many leaders
at the scrutiny of their nemesis have been subjected to rigorous and consistent imprisonment.
Leaders such as Mandela or Gandhi who have borne the grudge of their colonial supreme have
often been subjected to rigorous imprisonment so as to get their beliefs or ideologies broken.
Imprisonment affects the prisoner’s material possession because they are losing their livelihood,
the basic freedom of movement; they lose their earning capability, and have their total lifetime
utility wasted.It also affects the prisoner’s body because he or she is under the control of others
and there is very little freedom that actually exists. Consequentially it affects the psyche of the
prisoner, due to which it is called as a psychological punishment.3

1
John Dewey, Austin's Theory of Sovereignty, Political Science Quarterly, Vol. 9, No. 1 35 (Mar., 1894)
2
AL-Maida: 38.
3
Mickunas, A. Philosophical issues related to prison reform. In J. Murphy & J. Dison,Are prisons any better? Twenty
years of correctional reform 77–93 (1990).
Prison critics allege that the most detrimental effects are not physical deterioration, but mental
and moral deterioration. “You are nothing!” is a theme that prison inmates live with during the
course of their imprisonment, and the mental toll that prison takes on its population is very
difficult to measure.4

The earliest prisons were seen in the Egyptian civilization where the Egyptians use to imprison
Non-Egyptian offenders at open or available spaces such as farmhouses, cattle-sheds and these
offenders were tortured till death. The Babylonians also punished petty criminals by imprisoning
them; however the Babylonians themselves were punished by acts of execution, castration and
banishment from the community. In Bible, i.e. the Old and the New Testament reflected how
Romans use to quarantine sick people and the criminals, later these people use to be thrown to
beasts at chambers below the coliseum. In Greece, prisons were pre-dominantly maintained for
those criminals indulging in acts varying from small to big offences. The variety can be shown in
the period of sentences offered varying from short to long term.

The modern concept of prisons, however, as areas where criminals would be confined for
specified periods of time as punishment for offenses committed by them, did not rooted until the
eighteenth century where Common Law claimed its prevalence due to growing colonialism.

The scope of this research is not exhaustive and is restricted to India. So let us now understand
the concept of jail and bail system in India in order to facilitate this research.

Jailing in India

The procedure of jailing starts with the process of arresting a person and confining him to a
particular place for a particular period of time. Thus such an act disables his movement and usual
routine of life. Chapter five of the Code of Criminal Procedure, 1973 provides for the arrest of
persons in order to ensure accused’s presence at trial. Such an accused might be kept at a jail in a
police station under the custody of a police officer, and when it is required by the person to be
produced for statement, important piece of evidence before a judicial magistrate then such
facilitation becomes possible due to the concept of jailing. Jailing is basically done to ensure that
the accused’s presence is guaranteed during the course of the proceedings or the trial.

India follows the adversarial system of trial and such a system ensures that both the parties get a
fair say and hearing during the trial, this is also emphasized in the theory of Audi-Alteram-
Partem which states that the court is required to hear the other side of the story as well before
coming under the clouds of conclusion. Thus a fair trial requires the trial proceedings are carried
on with the existence of the accused and that he is given, as mentioned above a fair chance to
plead and defend himself from any allegations made.It must be understood that jailing a person
grabs such person of a liberty and such a liberty cannot be taken away without a reasonable
cause or rationale.

4
Joycelyn M. PollockThe Rationale for Imprisonment (2009)
If the presence of the accused at the trial cannot be procured except by arrest or detention, the
accused should by all means be arrested and detained pending the trial; however if his presence
can be reasonably ensured otherwise than by his arrest and detention, the law ought not to
deprive him of his liberty, as the detention of the accused prior to or pending trial is likely to
cause direct or indirect obstructions in the preparation of his defense and would not therefore be
quite conducive to a fair trial.5

This term "Arrest" is extremely normal term that we get a considerable measure in our day today
life. Regularly, we see a person, who do or have accomplished something illegal, get arrested.
For the most part, the expression "Arrest" in its common parlance implies the trepidation or
restriction of one's personal freedom. How about we comprehend this term in Indian law under,
Criminal Procedure Code, 1973 in its part V (section 41 to 60) that deals with Arrest of a person;
Incidentally, The Code has not explicitly defined the expression "Arrest". Every restriction of
freedom is not Arrest. Just the restriction of freedom through legal sources such as police officers
or if nothing else at least by legal magistrates, in a professionally able and adroit way results in
an act of Arrest. Consequently, we can state Arrest as signifying 'pronouncing a person by
judicial bodies bringing about restriction of his freedom and personal liberty'.

An Arrest comprises of arresting of someone else under officers engaged by law with the goal of
holding or keeping him to plead in a criminal accusation case or trial and after the trail such an
arrest can be transformed into a permanent or periodical arrest which can be termed as
imprisonment for such a criminal act committed and adjudged by the judiciary.

Arrest with or without warrant.

Magistrate taking cognizance of an offence can issue a warrant for facilitating arrest of the
accused as given under Section 204 read with Section 87, it must be understood that the warrant
can not only be given for ensuring attendance during trial but can also be given as a preventive,
precautionary measure with respect to compound offenders involved in habitual practices of
committing repeated crimes, former convicts, persons potentially equipped to commit a
cognizable offence or even having an intent to commit such a crime, this is given under Section
151, 41(2) read with Section 110, 41(I)(h), 41(i)(b), 41(i)(ba) and (d).6

Thus a warrant of arrest is an order in a written form that is signed by a magistrate and issued by
him, addressing to a police officer or some other person to whom he wants to refer to.7 So in
cases of absconding and disobeying a summon, a person can be arrested, this can be perceived by
the magistrate if such an offender is a repeat offender, or involved in cognizable offence. The
Code provides a judge for hearing the case and the adversarial system as followed by India
provides the person with an opportunity to defend his case and prove in the court of law that he
is not subjected to any arrest and detention before the establishment of Mens-reaand actusreus.
5
K.N.ChandrasekharanPillai, Criminal Procedure, 43 (6 th edn.,2014).
6
i.d.
7
State of Maharashtra Vs Christian Community Welfare Council of India [(2003) 8 SCC 546]
Arrests without warrant are carried forwarded by officials other than the judicial magistrate, i.e.
by police officers or even by civilians. This right to civilians is given and can be exercised during
times of emergencies as provided by the code, even though there can be possibilities of these
people not having legal knowledge or judicial mind, and non- arbitrary and impartial decision
making.

Cases of serious crimes involving dangerous people and where there is every chance of such a
person to be absconding, it would be rational to arrest without a warrant. This can also be a
preventive action enacted to avoid a danger or sudden occurrence of any criminal act as an
immediate arrest is required in such conditions. Given such a discretion, the investigation agency
however cannot exercise the right to arrest in a whim, fancy or wholly arbitrary exercise of
discretion.8

In cases where the police does not exercise the option of arresting the accused and keep him in
illegal or personal custody for investigation, a complaint can be filed where the magistrate can
make inquiry and pass appropriate orders.9 The Code strictly prohibits a person arrested without
warrant to be in custody for more than 24 hours without permission of a competent judicial
magistrate. Such furtherance of detention will hold the detention illegal unless granted with the
consent of the judicial magistrate10

Arresting without warrant also has some limitations11 where the officer is mandated to prove the
reasonability and credibility of such an act, this strong requirement ensures that such a discretion
is not misused. Right to be informed of the grounds based on which a person is arrested is under
sec. 50 of Code and article 22 of Indian Constitution is a crucial right. It is an obligation of the
police to provide the person and furthermore tell whether the offense is bailable or non-bailable.

Ordinarily, Bailable offenses are those where bail can be allowed and it is right of the person to
be conceded safeguard and Non-bailable offenses are the offences where bail can't be allowed for
the most part and it's the proceeding of the court at which the bail is granted.

Sections 41-B to 41 D provide the procedure of arrest. Every Police officer shall bear an
accurate, visible and clear identification of the accused name which will facilitate easy
identification; The Officer shall also prepare a memorandum of arrest being attested at least by
one witnesses, who is a member of the family of the person arrested or a respectable member of
the locality where the arrest is made which is also countersigned by the accused held under
detention.

8
Binoy Jacob v. CBI 1993 Cri LJ 1293 (Del).
9
Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260:1994 SCC (Cri) 1172.
10
Article 22(2) of Constitution of India guarantees this right.
11
Section 41(1)(a),(d) and (g) of Code of Criminal Procedure 1971;Nilabati v. State of Orissa, (1993) 2 SCC 746:1993
SCC (Cri) 527.
Arrested person have a right to inform a relative or acquaintance or friend of his arrest under
section 50 of Code

Arrested person have right not to be confined for more than 24hrs as mentioned above, without
being introduced before magistrate, it is to counteract unlawful and illicit captures. This right is
central right under article 22 of Indian constitution and upheld under section 57 and 76 of crpc.

Arrested person have right to be medically examinedunder Sections 54 and 55A, the person who
is arrested ought to be given the right to have his health and body conditions inspected by the
medical officer and when he is delivered before a magistrate or whenever under custody, with a
view to empowering him to defend for the offense for which he is charged with and was not
committed by him or that he was subjected to any the physical torment by the police officers
handling his custody. With the addition of 55A, "it should be an obligation of a person having
custody of an accused to take sensible care with regards to the wellbeing and security of the
accused".

Arrested person have right to stay silent under Sec. 20(3) of Indian constitution so police can't
remove self – criminalizing explanation from a person without will or without his assent.

The guidelines provided to process an Arrest is however not exhaustive and the court can decide
when it deems necessary12

Protection of female accused

A female accused cannot be arrested without the presence of a lady constable and cannot be
arrested and jailed at night. This can however not be provided in situations leading to heinous
possibilities regarding the accused.

The Court therefore ruled that while arresting a female accused, all efforts should be made to
keep a lady constable, but in circumstances where the arresting officers are reasonably satisfied
that such presence of a lady constable is not available or required and such a requirement would
cause unreasonable delay affecting the validity or fruit of arrest then the officers would be
permitted to arrest such a female accuse at any time of the day and even without the presence of
a lady constable, however the burden of proof is on such arresting officers.13

The Code also provides certain rights to people who have been arrested.

Rights of the person jailed.

- Section 50 of the code provides the arrested or jailed the right to know the ground of
arrest.

12
Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406: 1991 Cri LJ 3086
13
Rajkumari v. SHO Noida (2003) I SCC 500: 2004 SCC (Cri) 196
 - Such an arrested person shall be provided the right to information regarding to be
released on bail under Section 50(2) wherein it will help those who lack the knowledge
whether their offence is bailable or non-bailable in nature and in case if it is bailable, the
arrested can arrange for any surety or collateral on his behalf or even claim for a lawyer
- Section 56 and 76 of the Code provides the Arrested the right to be produced before a
Judicial Magistrate without any delay and this is applicable to both arrests made with or
without a warrant.
- Such a arrested person shall be confined only in a legally authorized place such as a
prison, Jail or a Police Station lock-up.
- It is obligated that the arrested has a right to inform to a friend or a relative about his
arrest.14
- The Arrested shall have the right of not being detained or jailed for more than 24 hours
without judicial proceeding or magistrate examinations.

If a police officer fails to produce an arrested person before a Magistrate within 24 hours of
the arrest, he shall be held guilty for wrongful detention.15

- The Person shall also have a right to consult a legal practitioner under Article 22(1) of the
Indian Constitution and he shall not be denied the right to consult a lawyer of his choice
and free legal aid is also under the scope of this right as provided under Article 21.
This constitutional right cannot be evaded or hindered by the arrested himself, even on
his non-application.16
- The Right to be medically analyzed by a doctor or physician, this has been provided
under Section 54 and under Section 53 a police can mandate an arrested person to
scrutinize his health in order to facilitate a proper trial with the view of enabling him to
defend and protect himself with due care. This must be informed by the arrested to the
Magistrate regarding the exercising of such a right.17

Section 220 and 342 of Indian Penal Code punished those who practice illegal arrest and
wrongful confinement.

Under Section 96 a person is provided the right to defend himself from any wrongful
confinement or illegal detention..

However in Emperor v. Madho Dhobi It was firmly established that a trial will not simply be
declared null because the process of arrest and detention had not been properly complied by the
police officer or any other person entitled to the right of arrest.

14
D.K.Basu v. State of West Bengal (1997) I SCC 416: 1997 SCC (Cri) 92
15
Khatri v. State of Bihar, (1981) I SCC 627, 632L 1981 SCC (Cri) 228:1981 Cri LJ 470.
16
Suk Das v. Union Territory of Arunachal Pradesh (1986) 2 SCC 401: 1986 SCC (Cri) 166:1986 Cri LJ 1084.
17
SheelaBarse v. State of Maharashtra (1983) 2 SCC 96: 1983 SCC (Cri) 353.
The offence and the trial for such an offence will still be valid and continue with thorough
furtherance.

If the arrest is unlawful and results in a fake imprisonment, where the person making such an
arrest openly states that he has made it, then such would result in a false imprisonment and it
would create a suit for damages in a court of civil law.18

Why Bail is a proper rule?

The concept of bail has its own theory and ideology.

Bail is a manifestation of a civilized society. Even-though the Judiciary is the epitome of justice,
there have been cases where justice has been denied by the judiciary.

The concept of bail emerges from the conflict between the police power to restrict the liberty of a
man who is alleged to have committed a crime and the presumption of innocence in his favor.19

The concept of bail is an undisputed mechanism offered under the Code of Criminal Procedure,
1973.

It has been asserted that man has certain natural or in-alienable rights and that it is the function of
the state to give recognition and free play to those rights in order that human liberty be preserved
and the human personality developed.20

Bail also plays an important role in ensuring the attendance of the accused or arrested in the trial
to give him a sense of relief or scope of remedy with whose possibility an arrested person would
seek.

Section 309 of Code provides for a Speedy trial, which is also an integral part of Indian
Constitution. However in present cases we can see many cases already pending before courts.
Until such a time what will a person held under detention do?

Such a person will have his liberty deprived until the trial is done?

The importance of bail comes in fore when the trial is time-consuming.

In Rang Bahadur v. State of Uttar Pradesh, The Supreme Court held that it is preferred by the
judiciary to acquit a guilty person than to punish an innocent person.

A person can only be deprived of his liberty according to a procedure established by law.21

18
AnowarHussain v. AjoyJumarMukerjee, AIR 1965 SC 1651: (1965) 2 Cri LJ 686.
19
P.V. Ramakrishnan Law of Bails 1 (9thedn 2016)
20
i.d.; Tom Paine’s Rights of Man, Jefferson’s Declaration of rights, Rousseau emphasized in French Revolution, HG
Wells, UNO on Human rights.
21
A.K.Gopalan v. State of Tamil Nadu; Maneka Gandhi v. Union of India.
Thus as established by adversarial Model of Justice, a person is not guilty until it is proved, thus
if there are two hypothesis possible, One leading to guilt of accused and other equally leading to
innocence of the accused, then such an accused will be acquitted until an evidence against him is
proved beyond reasonable doubt.

It was also held that if a procedure does not establish a quick trial, then such a procedure cannot
be regarded as fair and just, it would also violate Article 21 of Indian Constitution.

This right to speedy trial is provided to the arrested and he can claim it for the whole process of
trial surrounding, Investigation, Appeal and Retrial of the case.22

The section 437of Code of Criminal Procedure 1973 provides certain basic conditions for the
court while exercising its judicial discretion for granting or refusing of the bail in case of non-
bailable offences, some of the criteria are the - Characteristics of offence, previous criminal
record, the potential guilt involved, etc. and this provides exceptions to minors andwomen etc.

Section 438 Code of Criminal Procedure provides for concept of Anticipatory Bail where the
accused may apply for a bail if they anticipate an arrest, so as to prevent even the otherwise brief
incarceration. It must be noted that the provision of anticipatory bail is at the discretion of the
Judiciary. 

Problems caused if bail is not given

1) There shall be overcrowding of Prisons

It is pretty evidential that India being the 2nd most populated Country and having a high
crime rate, if a legal system neglects bail, then all the prisons would be running above
their rated capacity.
22
HussainaraKhatoon v. Home Secretary, State of Bihar; AR.Anthulay v. R.S. Nayak
 The most damaging effect is that it results in branding and classification of convicts into
strong criminals, because of the hard surroundings and non-conducive atmosphere.
It can also cause and spread illness in the jail, and scarcity of resources can lead to fights,
brawls and it becomes unmanageable for the jail authorities.

Locking up a person in a overcrowded place amounts to a human right violation and the
only legal deprivation such a person is amounted to face is curtailment of liberty and not
any other sanctions.

Thus Judicial Decisions from High courts and Supreme Court have resorted to grant of
bail to avoid such conditions.

2) Indiscipline

A person is jailed to learn and realize his mistake under Rehabilitative theory of
Punishment. First time Criminals, inmates tend to adapt to the anti-law surrounding that
is realistically present.

They are highly prone to ignore discipline, as their hopes of rehabilitation is endangered
when they realize they cannot be freed, in absence of bail or if they have served for
relatively a longer period.

3) Violence

Unanimous Presence of Prisoners leads to the possibility of such prisoners trying to

present their physical strength and spread dominance over another, they exaggerate their
act of crime and threaten or fear relatively weaker or newer inmates, thus influencing or
developing quarrels or fights.

Quarrel on trivial issues such as sharing of jail work, availability of food, prejudice,
grudge leading to injuries and even deaths.
4) Gangster-ism

Gangster-ism is caused, where the dogma of separation, gang wars and riots inside the
jail is caused by presence of huge population sharing same or different ideologies or
counter ideologies.

It’s a sad story that even certain jail authorities are a blind authorities to this.
 On 5th April 2013, Vinay Sharma, the accused facing trial for the Delhi Rape Case 2012,
was assaulted by a gang of prisoners in Tihar jail, leading to fracture and barring his
possibilities of writing exams for Indian Air-Force.23

5) Jail Riots

Continuous Imprisonment leads to overcrowding and all the above factors can cause Jail
Riots thus damaging the jail Properties, Injuring the Inmates, Officials, providing scope
for the dangerous criminals to escape etc.

6) Sexual Violence

Another aggravated form of indiscipline in jail is criminality amongst inmates where

prolonged societal seclusion encourages acts of sexual gratification and these prisoners
often end up sexually abusing other inmates.24

Thus these are the problems that will arise if a bail system is not given, however the above
reasons and factors are not exhaustive. There are many more related problems that arises such as
Health problems, Custodial Tortures and Deaths and Most Importantly Unfair Imprisonment.

Circumstances in which release on bail in imperative

- Cases other than those of non-bailable offences under Section 436.

It was held that a person who is given bail and released under Section 436 shall not
procure on new bails and bonds from the court inasmuch as the bail bonds submitted
before the police officers are for the purposes of appearing before the court.25

- If the investigation is not completed within the prescribed period of days, as given under
Section 57 as 24 hours, must be within this time be produced to a judicial magistrate who
will authorize detention not exceeding 15 days in totality, if further detention is required
the magistrate may direct so, but it shall not exceed a period of 90 days, after which a
person is entitled to be released after furnishing a bail.

- If there aren’t reasonable reasons or any evidence for proving the accused guilty of a non-
bailable offence, but sufficient grounds to conduct further enquiry and investigation, then
such a person shall be released on bail under Section 436.
23
NDTV News, Reported by SonalMehrotra, edited by Abhinav Bhatt, 5 April 2013 India
24
GirishKathpalia, Criminology and Prison Reforms 199 (2014)
25
MonitMalhotra v. State of Rajasthan, 1991 Cri LJ 806 (Raj).
 - If the Trial is not concluded within 60 days, for non-bailable offence, as held in Prahlad
Singh Bhati v. NCT Delhi.26

- Release on Bail after conclusion of the trial by prior to the actual judgment being
pronounced with a execution of a bond or surety, if such an arrested has not committed
any offence, then he shall be released without any of the above requirements under
Section 437(7).

- No bail in cases of offence punishable with death or imprisonment.27

The Honorable Supreme Court of India has mentioned several other requisites such as factors to
be considered while granting bail in non-bailableoffences;

These conditions include reasons limited to probability of repetition of the offence,

possibility of threatening witnesses, Person Habitually resorting to crime probability of
evidences being destroyed ,the age of the offender, previous record of the accused and his
consequent coercive elements of influence in affecting the investigation if he is granted
bail.28

Thus it was held that Bail is a Rule and Jail is an exception.

That means apart from the above noted factors ‘bail not jail’ should be the prevalent rule,
implying that as far as possible the Judiciary must try and grant bail and only in
exceptional and rarest of cases can bail be refused.

26
(2001) SCC 280
27
Shakuntala Devi v. State of Uttar Pradesh, 1986 Cri LJ 365 (All).
28
State through CBI v. AmarmaniTripathi AIR 2005 SC 3490;Gurcharan Singh v. State of Delhi, AIR 1978 SC 179.