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Analysis On Bail System in India Research Paper

The document analyzes the bail system in India, highlighting its historical development, legal framework, and the challenges it faces, particularly regarding socioeconomic disparities and the presumption of innocence. It discusses the classification of offenses into bailable and non-bailable categories, the types of bail available, and the judicial discretion involved in granting bail. The research aims to contribute to the ongoing discourse on reforming the criminal justice system in India to better serve the needs of its population.

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0% found this document useful (0 votes)
75 views10 pages

Analysis On Bail System in India Research Paper

The document analyzes the bail system in India, highlighting its historical development, legal framework, and the challenges it faces, particularly regarding socioeconomic disparities and the presumption of innocence. It discusses the classification of offenses into bailable and non-bailable categories, the types of bail available, and the judicial discretion involved in granting bail. The research aims to contribute to the ongoing discourse on reforming the criminal justice system in India to better serve the needs of its population.

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Pratiksha Yadav
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ANALYSIS ON BAIL List of Acronyms & Abbreviations

SYSTEM IN INDIA
AIR All India Reporter

Cr. L. J. Criminal Law Journal

NALSA National Legal Services


Authority

SCC Supreme Court Cases


SUBMITTED BY: C.R.P.C. Criminal Procedural Code

Pratiksha Yadav SC Supreme Court

HC High Court

FIR First Information Report

MM Metropolitain Magistrate
RAMA UNIVERSITY, KANPUR
JD Judicial Magistrate
ABSTRACT
The bail system plays a crucial role in I. INTRODUCTION
India’s criminal justice framework by
permitting individuals charged with a crime The term "Bail" refers to the assurance of a
to be released while waiting for their trial. defendant's presence in court for their trial. The
However, the system faces significant purpose of granting bail is not to free the
criticism and examination due to its prisoner from jail or custody, but to allow his
fundamental flaws and inefficiencies. When release from the custody of the Law and to
viewed impartially, the criminal law that place him under the care of his sureties who are
India has adopted is essentially a reflection obligated to present him at his trial at a
of the Victorian legacy inherited from the designated time and location. The granting of
British1. bail is the standard procedure, while its denial
is an exception anomaly. An individual charged
The aim of this research is to with a bailable offense is entitled to be freed on
comprehensively analyse the bail framework bail. Bail regarding the case Bailable offences
in India, encompassing its historical must be treated as mandatory. Regarding the
development, legal basis, and real issue of bail admission, the Criminal procedure
application. The piece will additionally differentiates between bailable and non-bailable
explore the disadvantages and problems offences. The approval of bail for the decision
associated with the bail system, like the regarding a person charged with a non-bailable
matter of undertrial detainees, the role of offence is discretionary. However, an
bail in ensuring access to fairness, and the individual charged with a bailable offense at all
impact of bail on the entitlements of the times during detention without a warrant at any
charged. This study seeks to contribute to point in the process has the entitlement to be
the current conversations and arguments granted bail.
concerning national transformation of the
criminal justice system through providing a Just a couple of changes to satisfy interest
comprehensive examination of the bail groups and voting blocs have been formed over
system in India. time. No thought has been applied to whether
these regulations that have existed for nearly
seven decades, have considered the suffering
and economic conditions of the 70% of the
population in this country that is residing in
Keywords: Justice, Reform, Bail bond, Fair extreme destitution. India, an emerging country
trial, Legislation burdened by destitution, needed something else
rather than a carbon copy of the regulations
currently established in advanced Western
countries.

The Code of Criminal Procedure, 1861, which


was later revised in 1898, served as the primary
legal framework for the bail system during the
British colonial era. The first law introduced to
address the bail system in India was the Bail
Act of 1899. It outlined the guidelines for
granting bail, including the right to be released
1 on bond, the presumption of innocence, and the
https://blog.ipleaders.in/bail-indian-legal-system/
court's ability to deny bail if required. In In recent years, there have been calls for bail
accordance with this legislative structure, the reform to address these alarms and indorse the
courts had the considerable authority to grant or principle of presumption of innocence. Some
deny bail depending on the unique facts of each jurisdictions have executed replacements to
case. The main considerations in deciding cash bail, such as risk assessment tools, which
whether to grant bail were the nature of the evaluate the individual's likelihood to appear in
crime, the character of the accused, and the risk court and their potential threat to public safety.
that the accused would elude justice or tamper These reforms aim to reduce the reliance on
with the evidence. However, during this time, monetary constraints and focus on safeguarding
the majority of decisions on bail were left up to court attendance and public safety while
the judge or magistrate's discretion, which simultaneously conserving the presumption of
frequently led to abuses of authority and innocence.
arbitrary rulings. The Code of Criminal Process
had two additional revisions after India attained
independence in 1947, in 1955, and in 1973. II. 1 Research problem
The term "personal bond" was first used in the
1973 amendment, which permitted the release Bail system in India is of complex nature which
of suspects on their own recognizance without is duly covered under provisions of Criminal
the need for any kind of security or surety. Procedure code and comes the purview of
Criminal law. The problem is basically on
In some cases, the nuisance of high bail analyses of bail system and it rigid and
amounts, particularly for individuals who indifferent way. There are several drawbacks
cannot have enough money it, effectively and challenges faced by bail system so deal
results in their continued confinement before with them this paper will help with several
their trial. This creates a situation where changes and reformation to be made.
individuals who may be innocent are being
punished or feeling adverse significances
purely due to their economic 2 conditions. Such
1.2 REVIEW OF LITERATURE
practices can undermine the presumption of
innocence by placing probable burden on 1. BAIL: LAW AND PRACTICE IN INDIA
defendants to plead guilty in order to secure (book) By Manoj Kumar Sinha, it covers the
their release or reduce their time spent in wide variety of bail jurisprudence in India. The
pretrial confinement, theoretically leading to constitutional philosophies and the statutory
unlawful convictions. Additionally, the bail provisions (section 436, 436A, 437, 437A, 438,
system may disseminate and aggravate 439, 167 etc.) that deal with bail under CrPC
socioeconomic disparities. It excessively 1973 have been widely discussed in nine
impacts downgraded communities, as chapters. The provisions of bail under a few of
individuals from low-income backgrounds distinct legislations have also been analysed.
often face complications in affording bail and The book also inspects provisions from
safeguarding release, while those with superior overseas jurisdictions wherever necessary. The
monetary possessions can secure their freedom changing silhouettes of judicial delimitation
more effortlessly. This unfairly intensifies through the high courts and the Supreme Court
inequalities in the criminal justice system, decisions on bail including decisions up to their
where access to wealth stimuli the conduct and critical examinations are common thread in the
conclusions of individuals accused of crimes. chapters. The recommendations of various
reports of the Law Commission of India finds
place with a critical study of 268th Report on 1. To study the historical evolution of bail
bail submitted 2017. practices and its intersection with judicial
discretion in safeguarding rights of individuals.
2. Law of Bail by RK Naroola And Udayan
Mukerji(book), it throws light on that “Bail 2. It aims to study the critical mechanism of
not jail,” as expounded by Justice V R Krishna granting the bail and judicial precedent
Iyer, is the central theme of discussion in this regarding bail in India.
publication. Law of Bail, while tracing the
3. It aims to critically analyse the rules and
history of the concept of bail in India and other
regulations for granting and cancellation of the
jurisdictions, delves into the legislative
bail under regular and special acts.
provisions governing bail. The authors analyse
the relevant provisions of the Code of Criminal 4. It elucidates the law of bail in UK with
Procedure, 1973 in the context of legislative special reference to Indian criminal justice
changes and judicial clarification accorded to it system.
by the superior courts. The comparative
5. It aims to analyse the active approach for
analysis of limitations considered in matters of
reformation in the view of article 21 of the
regular bail and anticipatory bail, especially in
Indian constitution.
view of the new-found rigour with which
perpetrators of economic offences are being 6. It throws light on Legal Safeguard in terms
pursued and prosecuted, has been 4 presented in of presumption of innocence in bail matters.
a tabular format for ease of reference and
7. It throws light on the role of police and
understanding. The aim is to review the
powers of police to grand the bail.
legislative and judicial developments relating to
bail on the anvil of Article 21 of the
Constitution of India, which recognises the
right to life and personal liberty as a
fundamental right. 1.5 Research Methodology
In this research paper descriptive and critical
analysis method is followed throughout the
1.3 Hypothesis
paper. The study is based on both primary and
This research is expected to throw light on secondary data. Primary data being the Statutes,
challenges faced by bail system in critically Cases and Books while secondary data or the
examining its history and present system. It also sources being articles, blogs, websites, journals
digs deep to critically analyse the effect of have been used to refer for the formation of this
defendant's criminal history, including prior paper. All these datas has been used to
convictions or previous instances of failure to understand the background of the paper and
appear, affects the judge's exercise of discretion also is a part of the formation of the research
in granting or denying bail. It will also critically questions as well. These data or sources has
evaluate jurisdiction of the court plays a role in helped the paper in understanding the current
the level of discretion exercised by judges in scenario in the society with respect to the
bail determinations and role of law in bail. research topic and helped in, in-depth study for
this research paper.
This study is basically more of existing
1.4 OBJECTIVES of the study scenarios and the laws made hence no field
study has been done.
III. Analysis (History of Bail) 2. Bail in non Bailable Offence

The idea of bail dates back to 399 B.C., when 3. Anticipatory Bail
Plato sought to establish a bond for liberation of 4. Default Bail
Socrates. The contemporary bail system
originated in England. The operational Offenses are classified for bail purposes into:
procedure for temporary release of a defendant
was that the guarantor must be determined to 1. Bailable Offense: Defined by Section 2(c) of
bring the accused to face his trial on the the BNSS, these offenses allow for bail as a
scheduled day for that trial. If he does not show matter of right under Section 478 BNSS when
up as required, the surety will face trial in his specified conditions are met. The police may
stead. 2 grant bail to the offender at the time of arrest or
detention.
The legal system in India is noted to have a bail
institution within the framework of liberating a 2. Non-Bailable Offense: These offenses,
detained individual upon his providing a where bail cannot be granted as a matter of
guarantee. The application of this system is right, are governed by Sections 480 and 483 of
mentioned in the seventeenth century, the the BNSS. Judicial discretion plays a crucial
travelogue of the Italian explorer Manucci, who role in deciding bail for non-bailable offenses,
had been restored to his liberation through bail which are typically more severe, carrying a
from incarceration due to a wrongful accusation penalty of three years or more.
of theft. He was given bail by the time the
Punjab regulations dictated that Kotal would Bail in India encompasses four types based on
only release him after he provided a surety. the stage of criminal proceedings, namely
Under Mughal Law, a provisional release might Regular Bail, Interim Bail, Anticipatory Bail,
be triggered by the consideration that if the and Statutory Bail.
delivery of justice was postponed in someone's
situation, then claims for compensation could
Regular bail is granted after arrest, ensuring
be submitted upon the judge personally for
attendance at trial.
damages incurred by the injured party.3

A. Explanation of Bail: Interim bail is short-term and precedes regular


or anticipatory bail hearings.
Sure, please provide the text you would like me
to paraphrase. The word 'Bail' comes from the Anticipatory bail is sought when arrest for a
French term Daillier, which signifies "to non-bailable offense is anticipated.
manage, to protect, "provide". It also originates
from the Latin term Taiulare, signifying "to Statutory bail or default bail is provided under
carry a burden"; and from "Taiulus" refers to Section 187 BNSS when the police fail to file a
"porter, carrier, and one who carries loads (for report within a specified timeframe.
compensation)."

B. Types of Bail Section 480 BNSS4 empowers the magistrate's


court to grant regular bail for non-bailable
1. Bail in Bailable Offence offenses, and Section 483 BNSS extends this to
the High Court or Sessions Court. Factors
2
K.N. Chaturvedi, Rights of Accused under the Indian Constitution,
4
283 (1964 Bharatiya Nagarik Suraksha Sanhita, 2023
3
J.N. Sarkar Mughal Administration India, 108 (1920)
influencing bail decisions include the nature of their release. Due to this, impoverished and
the crime, evidence reliability, accused's underprivileged people are sometimes
character, and public interest. wrongfully denied bail and detained

In Moti Ram v. State of M.P 5, in this case, The


Statutory bail, also known as default bail,
Hon'ble Justice lay down a test to determined
arises when the police fail to file a report within
"roots in the society" he emphasized on the
a specified time under Section 187(2) of the
following factors to be kept in the mind at the
BNSS. It is an inherent right of the accused if
time of granting of bail.
chargesheet isn't filed in the specified time,
applicable regardless of the offense's nature, 1. His residence in the society
and can be granted by Magistrates of the First
2. His employment, family, tie and relationship
or Second Class.
3. His reputation, character and monetary
Anticipatory bail, governed by Section 482 of position
the BNSS, allows individuals to seek bail
4. His prior criminal record
before arrest for anticipated non-bailable
offenses. Eligibility depends on factors like 5. The identity of responsible members of
charge severity, the applicant's background, and society who would vouch for his reliability
the risk of false charges.
6. The nature of offence charged the apparent
probability of conviction and the likely
Interim bail refers to temporary release during
sentence.
pending bail applications.
7. Any other factor indicating the ties of the
community or bearing on the risk of wilful
C. JUDICIAL APPROACH AND failure to appear.
IMPACT OF THE BAIL SYSTEM IN
Justice Krishna Iyer once more came up against
THE CRIMINAL JUDICIAL
the unjust bail system that was in place in India
SYSTEM in Maneka Gandhi v. Union of India6 .
There has been controversy and disagreement Although the offenses are divided among those
concerning the effect of the bail system on the that are and are not subject to bail, there is no
criminal justice system in India, with many definition of bail in the legislation. Further,
contending that it has both favourable and Justice P.N. Bhagwati discussed how the bail
unfavourable consequences on the rights of the system is unfair and discriminatory when
accused, the victims, and society at large. The viewed from a person's economic perspective.
rights of the accused are one of the main effects This discrimination occurs even if the amount
of the bail system. According to the Indian of bail set by the magistrates isn't high for
Constitution, which upholds the presumption of some, but the vast majority of those who are
innocence unless proven guilty, the right to bail brought before the courts in criminal cases are
is seen as a fundamental right. The bail system so impoverished that they would find it difficult
protects an accused person's right to liberty by to provide bail even if it's a small amount.
preventing their indefinite detention without Gudikanti Narasimhulu vs. Public Prosecutor,
charge or trial. The bail system has been High Court of AP 45 (1977) is one of the most
accused of discriminating in practice, however, significant rulings on India's bail system may
since it frequently benefits the powerful and 5
https://indiankanoon.org/doc/1912056/
wealthy who can afford to post large bail 6
43 MANEKA GANDHI V. UNION OF
amounts and retain costly attorneys to obtain INDIA,1978 AIR 597, 1978 SCR (2) 621
be found in this case. In this decision, the offense, the accused's background, and
Supreme Court ruled that granting bail is the the court's discretion.
rule and denying it is the exception. The court
also established a set of rules that judges must A. NATURE OF OFFENCE: One of the key
follow when deciding.7 elements affecting bail judgments in India is the
nature of the offense. Bail may be challenging
In the landmark case of Siddharam Satlingappa for the accused in the circumstances involving
Mhetre v. State of Maharashtra8, the Supreme serious felonies like murder, terrorism, or
Court ruled that when deciding whether to grant financial crimes. This is because to the
bail, the court should consider the accused's possibility that the accused could flee, as well
background, the nature of the offense, the as the possibility that they could tamper with
likelihood that the accused will tamper with the witnesses or evidence. Under such
evidence or influence witnesses, the possibility circumstances, the court may impose harsher
that the accused will flee, and the need to terms, a higher amount of bond, or even refuse
ensure that the accused will appear at the trial. to grant bail.
The court further stated that conditions placed
on granting bail should be reasonable and not B. ACCUSE BACKGROUND: In India, a
overly strict. significant aspect that may affect bail
judgments is the background of the accused.
In the case of Arnesh Kumar v. State of Bihar 9 , The court may examine the accused's criminal
the Supreme Court made the observation that background, past behavior, and the possibility
police should only detain an accused person if it of reoffending while determining bail
is absolutely necessary to do so and only after judgments. The court might be less likely to
putting the detainment's justifications in release the accused on a bond if they have a
writing. In addition, the court instructed the violent past or a history of similar crimes. Yet,
police to notify the defendants in accordance the court might be more likely to release the
with Section 41A10 of the Code of Criminal accused on a bond if they have a clean record or
Procedure rather than arrest them. The court are first-time offenders.
further ordered that the accused must appear
before a magistrate within 24 hours of the arrest C. COURTS DISCRETION: Another
and that the police officer must note the reasons significant aspect that can affect bail judgments
for the arrest. in India is the court's discretion.

Depending on its evaluation of the relevant


facts and circumstances, the court has the
FACTORS THAT INFLUENCE authority to grant or deny bail. The weight of
BAIL DECISION: In India, bail the evidence against the accused, the gravity of
decisions are influenced by various the crime, the accused's ties to the community,
factors, including the nature of the and the accused's propensity to appear at trial
are some of the variables that the court may
take into account. Together with the
7
GUDIKANTI NARASIMHULU VS. PUBLIC aforementioned reasons, the court may also
PROSECUTOR, HIGH COURT OF AP 1978 AIR
429, 1978 SCR (2) 371
take the accused's age, familial relationships,
8
SIDDHARAM SATLINGAPPA MHETRE V. and overall health into account while
STATE OF MAHARASHTRA, 1 SCC 694 determining the bond. The quality of the bail
9
ARNESH KUMAR V. STATE OF BIHAR, 8 SCC
273 application and the representation can also have
10
9 CODE OF CRIMINAL PROCEDURE,1973, an impact on the court's judgment. In
§.41 A, NO.2, ACTS OF PARLIAMENT, 1973 conclusion, several elements, such as the nature
(INDIA).
of the offence, the background of the accused, that those with power and money can use the
and the court's discretion, affect bail system to their advantage, which can lead to a
judgements in India. The court's decision is mistrust of the criminal justice system. A key
based on a detailed analysis of the facts and tenet of any democratic society, faith in the
circumstances of the case and seeks to strike a judiciary's justice and impartiality can be
balance between the rights of the accused and damaged as a result of this. Also, the extended
the objectives of justice. imprisonment of people awaiting trial can result
in jail overpopulation and a drain on the
IMPACT OF THE BAIL SYSTEM IN THE
criminal justice system's resources. To address
CRIMINAL JUDICIAL SYSTEM:
these problems, there have been several recent
There has been controversy and disagreement attempts to alter India's bail system. One such
concerning the effect of the bail system on the initiative is the implementation of a risk
criminal justice system in India, with many assessment framework, where judges consider
contending that it has both favourable and various aspects when determining whether to
unfavourable consequences on the rights of the grant bail, including the seriousness of the
accused, the victims, and society at large. The crime, the accused's criminal history, and the
rights of the accused are one of the main effects likelihood that they will flee the scene of the
of the bail system. According to the Indian crime or tamper with evidence. With this
Constitution, which upholds the presumption of strategy, it is hoped that the bail system would
innocence unless proven guilty, the right to bail be just and equitable and that choices will be
is seen as a fundamental right. The bail system made based on facts, rather than values, such as
protects an accused person's right to liberty by wealth or social standing.
preventing their indefinite detention without
charge or trial. The bail system has been
accused of discriminating in practice, however,
since it frequently benefits the powerful and
wealthy who can afford to post large bail SUGGESTIONS
amounts and retain costly attorneys to obtain The fairness, effectiveness, and effect on the
their release. Due to this, impoverished and rights of the accused of the Indian bail system
underprivileged people are sometimes have long been a source of controversy. Here
wrongfully denied bail and detained for a long are some of the measures that could be
time while having inadequate or insufficient implemented to reform the bail system in India:
evidence to support their claims. The bail
system significantly affects crime victims as LEGISLATIVE CHANGES: To enhance the
well. If the accused has a history of violence or bail system, the Indian government may
harassment, the victim may feel scared or consider passing new legislation or changing
intimidated when the accused is released on current ones. Reduce the number of offenses
bond. Once the accused was released on bail, that are not subject to bail so that more people
there have been instances where victims can post bail as one potential change. In order
experienced additional injury or vengeance to speed the hearing and decision-making
from the accused. As a result of their possible process for those who are detained, the
concern for their safety and that justice would government should also think about creating
not be served, victims may be less inclined to measures for accelerated bail hearings.
come forward and report crimes. Beyond PROCEDURAL REFORMS: In order to
specific instances, the bail system may have speed up the bail process, the Indian judiciary
broader societal effects. People may believe may take procedural amendments into
consideration. Standardizing the bail likely sentence in so far as these factors are
application form could be one way to ensure relevant to the risk of nonappearance.
that all relevant information is provided and
(9) Any other factors indicating the ties of the
that the procedure is uniform across courts.
accused to the community or barring on the risk
Another change would be the implementation
of wilful failure to appear.
of a tool that courts can use to assess the risk of
an accused individual showing up for their
court date, allowing judges to base their choices
on that information when setting bail. Conclusion
TRAINING PROGRAM FOR JUDICIAL This chapter deals with the possible conclusion
OFFICER: The Indian judicial system should of discretion in bail matters could shed light on
think about offering training courses on how to potential reforms to promote fairness,
use bail properly to magistrates and judges. consistency, and transparency in the bail
These workshops could go through subjects, process. It may provide valuable insights into
including what to take into account when the factors that influence judicial decision-
determining whether to give bail, how to create making, leading to more equitable outcomes
bail terms, and how to check that the and a stronger criminal justice system. A
requirements are met. thorough examination of the bail system is also
urgently needed, bearing in mind the
It is possible to thoroughly investigate the socioeconomic circumstances of the vast
accused to see if his ties to the community majority of our population. When deciding
would prevent him from escaping the court. whether to issue bail, the court must also
Before granting bail to the accused, the court consider the accused's socioeconomic situation
may consider the following information about and show compassion for them.
him:

(1) The nature of the offense committed by the


accused. REFERENCES
(2) The length of his residence in the [1]. A. Dhamija, Law of Bail, Bonds, Arrest
community. and Custody, Lexis Nexis Butterworths
(3) His employment status history and his Wadhwa, Nagpur, First Edition, 2009
financial condition. [2]. Abhay, Duhan Prasad, Glossary of
(4) His family ties and relationships. Criminal Law, All India Reporter Pvt. Ltd2008

(5) His reputation, character, and monetary [3]. Bharat Bhushan Das, Bail: Judicial
conditions. Discretion, Cochin University Law Review,
Volume- IX, 1985, Page No. 350- 361
(6) His prior criminal records, including any
record or prior release on recognizance or on [4]. C.P. Arora, Criminal Major Acts,
bail. Universal Law Publishers, First- Edition, 2015

(7) Identity of responsible members of the [5]. D.D. Basu, Introduction to the Constitution
community who would vouch for his reliability. of India, Publisher, Lexis Nexis, 23rdEdition
2018
(8) The nature of the offense charged and the
apparent probability of conviction and the [6]. Eighteenth Law Commission Report No.
203, Law relating to Anticipatory Bail.
[7]. K. Krishnamurthy, Police Diaries,
Statements, Reports, Investigation and Arrest,
2nd Edition, 1986

[8]. N.V. Paranjape, Criminal Procedure


Code, 1973, Publisher- Central Law Agency,
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[9]. P.K. Majumdar and R. P. Kataria, Law of


Bails, Bonds and Arrest, PublisherOrient
Publishing Company, 3rd Edition, 2014

[10]. R.K. Narula, Jail or Bail, Himalaya


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[11].R.V. Kelkar, Criminal Procedure Code,


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[13. ]WWW.google.com

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