Unit 3: Preparing Bail and Other Applications

UNIT 3: PREPARING BAIL AND OTHER APPLICATIONS

3.1 Objectives
3.2 Introduction
3.3 Concept of Bail
3.4 Bailable and Non-Bailable Offences

3.5 Release on Bail Following Procedural Delays

3.6 Personal Bonds

3.7 Conditional Bail

3.8 Anticipatory Bail

3.9 Special Powers of High Courts or Courts of Session

3.10 Bail during Appeals

3.11 Continuing Challenge of Undertrial Prisoners

3.12 Summary

3.13 Questions for Content

3.14 Questions for Discussion

3.1 OBJECTIVES

• Understand the concept of bail

• Understand the current law related to bail in the Indian criminal justice system
• Understand how to write certain applications for bail
• Understand the “undertrials” challenge created in part by the current bail system
 Unit 3: Preparing Bail and Other Applications

3.2 INTRODUCTION

It is a basic principle of criminal law that an individual is innocent until proven guilty.1
While the criminal justice system wants to ensure that accused persons will attend trials
and be present to receive any punishment instituted if found guilty of the crime for which
she/he is charged, the presumption of innocence should place significant restrictions on
the measures the government can take to ensure the presence of the accused for such
purposes. Bail and bail procedures attempt to address some of the issues that arise from
this question of what to do with defendants who have been accused of committing an
offence but who are awaiting trial and thus still legally innocent.

This unit will provide a general overview of the concept of bail and bail procedures in
India, with recommended formats for filing applications for bail in a few of the contexts
discussed. The unit will also discuss some of the challenges created in the criminal justice
system by the implementation of the current rules and laws pertaining to bail, particularly
with respect to indigent defendants and other undertrial prisoners.

3.3 CONCEPT OF BAIL

Bail provides the opportunity for an accused person to be released from custody pending
investigation, trial, sentencing, or appeal. Specifically, according to Ballentine’s Law
Dictionary, bail is “the means of procuring the release from custody of a person charged
with a criminal offense or with debt by assuring his future appearance in court and
compelling him to remain within the jurisdiction.”2 In the Indian criminal justice context,
the police, a magistrate, or a court will fix bail in appropriate cases after a person is
arrested. The bail amount must “be fixed with due regard to the circumstances of the case
and … not be excessive.”3

In order for an accused person to be released on bail, the accused or a person who takes
on responsibility for the accused (called a “surety”) must execute a bail bond.4 The bail
bond is a written document in which the accused states that she/he will appear in court at
the required proceeding and will pay the fixed amount of bail as a penalty if she/he fails

1
See, e.g., South Asia Human Rights Documentation Center (SAHRDC) HANDBOOK OF HUMAN RIGHTS
AND CRIMINAL JUSTICE IN INDIA: THE SYSTEM AND PROCEDURE, 57 (Oxford University Press 2006)
(Hereinafter “SAHRDC Handbook”).
2
Ballentine’s Law Dictionary, 3rd Edition, 1969.
3
Indian Code of Criminal Procedure (CrPC), sec. 440, 1973, Available at:
http://www.vakilno1.com/bareacts/CrPc/s300.htm.
4
See SAHRDC Handbook, supra note 1, at 57.
 Unit 3: Preparing Bail and Other Applications

to appear.5 The surety takes on legal liability for having to pay the designated monetary
penalty should the accused not attend the required proceedings.6

Various Supreme Court judgments and Criminal Procedure Code (CrPC) provisions
(some of which codify earlier Supreme Court judgments) lay out the scope and contours
of bail in the Indian criminal justice system.

3.4 BAILABLE AND NON-BAILABLE OFFENCES

To begin with, the CrPC designates that for certain “bailable offences”, accused persons
have a right to be released on bail;7 for other “non-bailable offences”, the requisite court
has discretion in determining whether or not to grant bail to the accused;8 and for still
other more serious non-bailable offences the court may never grant bail.9 Bailable
offences for which bail is a right are generally less serious offences than non-bailable
ones, for which bail is either discretionary or not permitted.10

In the middle discretionary non-bailable offences category, when making a determination

as to whether or not to grant bail, a court should take into account such factors as the
“nature and seriousness of the offence, the character of the evidence, circumstances
which are peculiar to the accused, a reasonable possibility of the presence of the accused
not being secured at the trial, reasonable apprehension of witnesses being tampered with,
the larger interests of the public or the State.”11 The Supreme Court has held that, in
general, bail should be the norm and continued custody the exceptional circumstance.12

In the category of non-bailable offences where bail is not permitted, courts may not
release someone on bail “if there appear reasonable grounds for believing that [the
accused] has been guilty of an offence punishable with death or imprisonment for life.”13
Similarly, unless it is in the interest of justice or another special reason, courts cannot
grant bail to a person accused of a cognizable offence if that person had “been previously

5
Id.
6
Id.
7
CrPC, sec. 436.
8
CrPC, sec. 437.
9
CrPC, sec. 437(1)(i, ii).
10
For a listing of bailable offences recognized by the CrPC, see CrPC, First Schedule, Available at:
http://www.vakilno1.com/bareacts/CrPc/sSCI.htm. Non-bailable offences are those not included in the First
Schedule or designated as bailable by any other law. CrPC, sec. 2(a).
11
State v. Jagjit Singh (Capt.), 1962 AIR 253; Gurcharan Singh v. State (Delhi Admn), 1978 AIR 179. All
Supreme Court decisions can be found at http://www.judis.nic.in/supremecourt/chejudis.asp by filling in
the year and page number: in this case 1978 and 179.
12
State of Rajasthan, Jaipur v. Balchand, 1977 AIR 2447.
13
CrPC, sec. 437(1)(i).
 Unit 3: Preparing Bail and Other Applications

convicted of an offence punishable with death, imprisonment for life or imprisonment for
seven years or more,” or twice before had been convicted of “a non-bailable and
cognizable offence.”14 The CrPC provides exceptions for both of these situations and
provides discretion to courts to release on bail children under sixteen, women, or the
“sick or infirm” for any offence.15

The following provides a general format for an application to be released on bail by a

person accused of a non-bailable offence:

BAIL UNDER SECTION 437(1) CRPC IN NON-BAILABLE CASES

IN THE COURT OF JUDICIAL MAGISTRATE OF __________ AT

______________
Bail Application No. _______________________________________

In
C.C.No. ___________________________________________

Or
Crime No. _________________________________________
Before ______________ Police Station at _____________

Between:

Name of petitioner/ accused, her/his father’s/ husband’s name, religion, age, occupation
and residence
____________________ Petitioner/ Accused

And

In case of State as complainant: State of ________ represented by Station House Officer

at __________________

In case of private complaint: Name of respondent/ complainant, her/his father’s/

husband’s name, religion, age, occupation and residence
_____________________ Respondent/ Complainant

14
CrPC, sec.437(1)(ii).
15
CrPC, sec. 437(1).
 Unit 3: Preparing Bail and Other Applications

PETITION FILED ON BEHALF OF THE PETITIONER/ ACCUSED UNDER

SECTION 437(1) CrPC

1. The complainant has registered Crime No. ________________ filed the above
case against the Petitioner/ accused under section ________ of IPC or any other law for
the time being in force which is a non-bailable offence.
2. The petitioner/ accused is innocent of the offence. She/he was arrested by the
_________ Police on ______________ without warrant and is produced before this Court
today or issued warrant of arrest by the Court against the accused on ________________
which came to be known to her/him only today and thus surrenders herself/himself before
this court.
3. The petitioner/ accused was implicated in the case by the rivals of petitioner/
accused due to ______________________________________.

4. (Point out any factors that tend to show a decreased likelihood of absconding,
such as the fact that the petitioner/accused has roots in the community, has family, has a
job or business in the area, or owns property in the area).

5. The petitioner/ accused therefore prays that the Hon’ble Court may be pleased to
order her/his release on bail and pass such order or further orders as the court may deem
fit and proper.

Place:
Date:
Counsel for Petitioner

3.5 RELEASE ON BAIL FOLLOWING PROCEDURAL DELAYS

Regardless of the offence, a person must be released on bail if the investigation of the
crime for which the person is accused takes longer than 90 days when the offence is one
punishable by death, life imprisonment, or imprisonment for 10 years or more; or 60 days
for all other cases.16 In the same vein, for any non-bailable offence, a person should be
released on bail if the trial of the accused lasts longer than 60 days past the original trial
date.17 Similarly, in the interim period between the conclusion of a trial and sentencing,

16
CrPC, sec. 167.
17
CrPC, sec. 437(4). It should be noted that a magistrate does have the power to not release a person on
bail under the circumstances of this section and record in writing the reasons for making such a decision.
 Unit 3: Preparing Bail and Other Applications

the court shall release an accused on a bond if the court has reasonable grounds to believe
the accused is not guilty.18

The following provides a general format for an application to be released on bail if the
trial has not been completed within the required 60 days:

BAIL APPLICATION UNDER SECTION 437(6) CRPC

IN THE COURT OF JUDICIAL MAGISTRATE OF __________ AT

______________
Bail Application No. _______________________________________

In
C.C.No. ___________________________________________

Between:

Name of petitioner/ accused, her/his father’s/husband’s name, religion, age, occupation

and residence
____________________ Petitioner/ Accused

And

In case of State as complainant: State of ________ represented by Station House Officer

at __________________
_____________________ Respondent/ Complainant

PETITION FILED ON BEHALF OF THE PETITION UNDER SECTION 437(6)

CrPC

1. The accused is facing charges under section _________________ of IPC/ any

other law for time being in force. The offence in non-bailable.
2. The petitioner/ accused is innocent of the offence. She/he was arrested by the
Respondent on ____________ and is remanded to judicial custody.
3. The petitioner/ accused was implicated in the case by the rivals of the petitioner/
accused due to________________________________________.
4. Though 60 days lapsed, the trial has not been completed in the case.

18
CrPC, sec. 437(7).
 Unit 3: Preparing Bail and Other Applications

5. The petitioner/ accused therefore prays that the Hon’ble Court may be pleased to
order her/his release on bail and pass such order or orders as the Court may deem fit and
proper.

Place:
Date:
Counsel for Petitioner

3.6 PERSONAL BONDS

Recognizing that the requirement that an accused person post a monetary sum to be
released on bail creates an unjust and unequal situation for many impoverished accused
who languish in prison pending the outcome of their cases, the Supreme Court and
subsequently the CrPC provided that those unable to pay such amounts could still be
released on personal bonds without sureties.19

In Moti Ram v. State of M.P., the Supreme Court lamented the fact that an indigent
accused may not be able to secure her/his freedom pending the outcome of a case, while
others can do so because of their ability to pay.20 The Court quoted U.S. President
Lyndon Johnson’s critique of earlier bail provisions in the United States: “The poorer
defendant … languishes in jail weeks, months and perhaps even years before trial. He
does not stay in jail because he is guilty. He does not stay in jail because any sentence has
been passed. He does not stay in jail because he is any more likely to flee before trial. He
stays in jail for one reason only – because he is poor.”21 In Moti Ram, the Court held that
the term “bail” in the CrPC covers “release on one’s own bond with or without sureties”
and called upon the legislature to treat considerations such as “family ties, roots in the
community, membership of stable organizations”, rather than money, as the basis for bail
decisions.22

Similarly, in Hussainara Khatoon & Ors., the Supreme Court found that a court should
release an accused who is unable to pay on a personal bond if that individual has “roots in

19
See The Code of Criminal Procedure (Amendment) Act, 2005, sec. 35 amending sec. 436 of CrPC;
Hussainara Khatoon & Ors v. State of Bihar, 1979 Air 1360; Moti Ram & Ors. v. State of M.P., 1978 AIR
1594.
20
Moti Ram & Ors. v. State of M.P., 1978 AIR 1594.
21
Id (quoting Lyndon B. Johnson, President of the United States, “Remarks at the Signing of the Bail
Reform Act of 1966,” 22 June 1966, Available at:
http://www.presidency.ucsb.edu/ws/index.php?pid=27666).
22
Moti Ram & Ors. v. State of M.P., 1978 AIR 1594.
 Unit 3: Preparing Bail and Other Applications

the community and is not likely to abscond.”23 In its ruling, the Court laid out the
following considerations, which ought to be evaluated in making bail decisions:

“1. The length of [an accused’s] residence in the community.

2. His employment status, history and his financial condition,
3. His family ties and relationships,
4. His reputation, character and monetary condition,
5. His prior criminal record…
6. Identity of responsible members of the community [to] vouch for his
reliability.
7. The nature of the offence charged and the apparent probability of
conviction and the likely sentence in so far as these factors are relevant to
the risk of non- appearance, and
8. Any other factors indicating the ties of the accused to the community or
bearing on the risk of willful failure to appear.”24

The Indian Parliament partially adopted the suggestions of the Supreme Court in The
Code of Criminal Procedure (Amendment) Act, 2005, which mandates that indigent
defendants eligible for bail be released on personal bond without sureties, and defines an
indigent person for the purposes of the provision as anyone who “is unable to give bail
within a week of the date of arrest.”25 As will be discussed at the end of the module,
despite Supreme Court pronouncements and now the CrPC amendments to the criminal
procedure code, literally hundreds of thousands of mostly indigent persons languish in
prisons without ever having faced trial let alone having been convicted of any offence.26

3.7 CONDITIONAL BAIL

If for whatever reason a court decides to release on bail an individual who has committed
an offense of Chapters VI, XVI, or XVII of the Indian Penal Code which are punishable
by at least seven years imprisonment, the court may impose any conditions deemed
necessary to ensure the accused’s attendance and restraint from committing other
offences.27 The Court has wide discretion in issuing such conditions, so long as the

23
Hussainara Khatoon & Ors v. State of Bihar, 1979 Air 1360.
24
Id.
25
The Code of Criminal Procedure (Amendment) Act, 2005, sec. 35 amending sec. 436 of CrPC.
26
See, e.g., “Justice Under Trial,” Tehelka, 2006, Available at:
http://www.tehelka.com/story_main16.asp?filename=Ne021806Justice.asp.
27
CrPC, sec. 437(3).
 Unit 3: Preparing Bail and Other Applications

conditions do not violate any fundamental rights of the accused, undermine the
application of bail altogether, or force an accused to assist in a police investigation.28

3.8 ANTICIPATORY BAIL

Anticipatory bail refers to an application for bail by a person who “has reason to believe”
she/he will be arrested for allegedly committing a non-bailable offence prior to such
arrest.29 A High Court or Court of Sessions can accept such an application and has
discretion to order the release of the person on bail if indeed that person is arrested.30 The
beliefs of the applicant for anticipatory bail that she/he will be arrested must be based on
“reasonable grounds” and not simply “fear” or “vague apprehension.”31 As such, the
applicant must disclose “specific events and facts” that demonstrate the reasonableness of
the belief she/he will be arrested, and the order of the court for anticipatory bail must
restrict itself to such a specific reason for anticipated arrest.32

While the Supreme Court asserted in Balchand Jain that courts should grant anticipatory
bail only in “exceptional circumstances,”33 still the Supreme Court later articulated in
Gurbaksh Singh that the requisite courts have “wide discretion” in granting anticipatory
bail and should not “impose any unfair or unreasonable limitation on the individual’s
right to obtain an order of anticipatory bail.”34 In Gurbaksh Singh, the Court outlined
various factors, similar to those described above, that a court should consider in
determining whether to grant anticipatory bail, such as: “the nature and seriousness of the
proposed charges, the context of the events likely to lead to the making of the charges, a
reasonable possibility of the applicant’s presence not being secured at the trial, a
reasonable apprehension that witnesses will be tampered with and ‘the larger interests of
the public or the state.’”35

If a court does in fact grant this anticipatory bail, the court can impose conditions on
release, such as requiring that the person be available for police interrogation, that the
person not threaten or induce anyone to refrain from disclosing facts in the case, that the
person not leave the country, or any necessary conditions as provided for under the
conditional bail provisions of CrPC section 437 noted above.36

28
See SAHRDC Handbook, supra note 1, at 64.
29
CrPC, sec. 438 (1).
30
Id.
31
Gurbaksh Singh Sibbia v. State of Punjab, 1980 AIR 1932.
32
Id.
33
Balchand Jain v. State of Madhya Pradesh, 1977 AIR 366.
34
Gurbaksh Singh Sibbia v. State of Punjab, 1980 AIR 1932.
35
Id.
36
CrPC, sec. 438(2).
 Unit 3: Preparing Bail and Other Applications

The following provides the potential format for an application for anticipatory bail:

MEMORANDUM OF CRIMINAL PETITION

Application for Anticipatory Bail u/s 438 of the Criminal Procedure Code 1973

IN THE HIGH COURT OF JUDICATE OF _______ /

OR COURT OF SESSION AT ______
Cri.P.No ________ of 2009
Against

Between:

Name of the petitioner/accused, her/his father’s/husband’s name, age, occupation and

residence.
_____________________Petitioner/ accused

And

State of _______ represented by its Public Prosecutor at _________

________________________Respondent/ complainant

The address for service of notices, summons, processes etc on the above petitioner/
accused is that of her/his counsel __________ Advocate/s at ___________________

The petitioner/ accused prefers this memorandum of criminal petition for the grant of
anticipatory bail in the Crime No ________ of ______ police station at _________ for
the following among other grounds _______

(Narrate the facts in brief, registration of crime by respondent, FIR particulars, state of
investigation by police, reason for belief of arrest by petitioner/accused, and declaration
of innocence of petitioner/ accused in distinct paragraphs)

(Point out any factors that tend to show a decreased likelihood of absconding, such as the
fact that the petitioner/accused has roots in the community, has family, has a job or
business in the area, or owns property in the area).
 Unit 3: Preparing Bail and Other Applications

(Point out that the petitioner/accused has been cooperating with the police in every way,
or provide an explanation as to why the petitioner/accused did not cooperate).

(Write a paragraph informing the court of any other application for bail that has been
filed and the result of any such application).

Undertake to comply with all conditions imposed by the Court, and to assist the police
investigation in every way.

(Lastly add the following relief):

The petitioner/ accused therefore humbly prays that the Hon’ble Court may be pleased to
grant anticipatory bail to her/him in the event of her/his arrest in connection with the
Crime No_______ of ____ by the _______ police of ______ pending enquiry and trial in
the interest of justice and pass other order or further orders as the court may deem fit and
proper in the circumstances of the case.

Place:
Date:
Counsel for Petitioner

3.9 SPECIAL POWERS OF HIGH COURTS OR COURTS OF SESSION

All High Courts and Courts of Session have broad powers with respect to bail that allow
them to order any person in custody to be released on bail, add any conditions in line with
section 437 discussed above,37 or modify/rescind any conditions imposed on a bail
order.38 These Courts also have the power to order that any person released on bail in this
manner be re-arrested and put back in custody.39

The following provides a general format for making an application to a High Court or
Court of Sessions requesting bail:

BAIL UNDER SECTION 439 CRPC

Memorandum of Criminal Petition
Under section 439 CrPC r/w section 437(3) CrPC

37
CrPC, sec. 439(1)(a).
38
CrPC, sec. 439(1)(b).
39
CrPC, sec. 439(2).
 Unit 3: Preparing Bail and Other Applications

IN THE HIGH COURT OF JUDICATURE OF ______________/ SESSIONS

COURT AT _____________.

Bail Application No._________________ of ____________

Between:

Name of petitioner/accused, father’s/husband’s name, religion, age, occupation and

residence
_________________Petitioner/ Accused
And

State of ________ represented by Station House Officer at ___________

__________________Respondent/ Complainant

The address for service of all notices, summons, processes, etc. on the above named
petitioner is that of her/his counsel ___________, Advocate, Advocate’s Association,
High Court Buildings at _________________.

1. The Inspector of Police, _______________ filed charge sheet against the

petitioner/ accused in Crime No. _______________ under section ___________ of
___________ which is registered as S.C. on the file of District & Sessions Judge at
_________ for _________________________ on __________________. The offence
charged is not punishable with life imprisonment or death.
2. The petitioner/ accused was arrested by the afore-said Inspector of Police
_________ on ______________ and remanded to judicial custody by the _________
Magistrate of __________.
3. The petitioner/ accused has filed a Bail Application No. ______________ before
the Sessions Court, _________________ which ended in its dismissal on
______________.
4. The petitioner/ accused submits that she/he is innocent of the offence and is a
respectable person in the village/town/city. (Provide reasons to show innocence).

5. (Point out any factors that tend to show a decreased likelihood of absconding,
such as the fact that the petitioner/accused has roots in the community, has family, has a
job or business in the area, or owns property in the area).
6. Mention any previous bail applications filed and the result thereof.
7. The petitioner/accused therefore prays that the Hon’ble Court may be pleased to
enlarge her/him on bail who is shown as accused no. _______________ in S.C. No.
 Unit 3: Preparing Bail and Other Applications

___________________ on the file of District & Sessions Judge _______________

pending trial and pass such other order or further orders as the Court may deem fit and
proper.

Place:
Date:
Counsel for Petitioner/ Accused

3.10 BAIL DURING APPEALS

If someone who has been convicted of a criminal offence appeals that conviction, the
appellate court or the requisite High Court can order that the sentence be suspended and
that the accused be released on bail.40 If the convicted person had been sentenced to
imprisonment of three years or less, or was convicted of a bailable offence for which the
accused had previously been released on bail, then the court must order the accused to be
released on bail unless the court has “special reasons” for refusing bail.41

The following provides the general format for a bail bond for bail and for a suspended
sentence granted pending an appeal of a criminal conviction:

BAIL BOND IN CASES OF SUSPENSION OF SENTENCE BY APPELLATE

COURT

(Refer to Sections 389 or 392, CrPC)

In the court of ________________

Criminal Appeal No./ Sessions Case ____________________

Criminal Miscellaneous Petition No. ____________________

Calendar Case No./ Sessions _____________________ on the file of the Magistrate/

Sessions Judge ___________________ of _______________________

In the case of:

_____________________________________ Petitioner/ Applicant
Versus
_____________________________________ Respondent/ Defendant

40
CrPC, sec. 389(1, 2).
41
CrPC, sec. 389(3).
 Unit 3: Preparing Bail and Other Applications

To, Sessions Judge/ Magistrate ________________ of ___________________

Whereas I have been convicted/ committed by the ___________Magistrate/ Sessions

Judge, of the offence/ on the charge of _________________ punishable under section
___________ of IPC and sentenced to rigorous imprisonment and to pay a fine of
rupees____________ in the above case. Whereas I have on preferring the above appeal/
petition been admitted to bail by the said (a) ________ Court of ____________ in its
order, dated ______________.

I do hereby bind myself to attend before the said court or any other court to which the
appeal or the Sessions Case may be transferred at 11 a.m. on ____________ or whenever
required by the said court the _______ Court of ________.

Place:
Date:
_________________ Accused

3.11 CONTINUING CHALLENGE OF UNDERTRIAL PRISONERS

Despite the Supreme Court directives and CrPC amendment discussed above that provide
for indigent defendants to be released on a personal bond, vast numbers of presumptively
innocent accused persons remain in detention before ever being convicted of any crime.
Estimates contend that more than 70% of all prisoners in India are undertrial prisoners,42
meaning that they have never been convicted of an offence and are awaiting trial. Mostly
from poverty-stricken and marginalized backgrounds, some undertrials have remained in
detention for years, and even decades, often facing overcrowded facilities, poor
sanitation, and even abuse and torture.43 The Supreme Court, and more recently the
legislature, have made efforts to address this challenge, but the failure to implement
recommendations and directives has allowed the problem to persist.

42
See, e.g., “CJI signals speedier justice for undertrials,” Times of India, 17 Aug. 2009, Available at:
http://timesofindia.indiatimes.com/news/india/CJI-signals-speedier-justice-for-
undertrials/articleshow/4900450.cms.
43
See, e.g., Vanessa Sanderson, “India: Punishment Without Conviction: The Plight of India’s
Undertrials,” Human Rights Solidarity, Available at:
http://www.hrsolidarity.net/mainfile.php/2008vol18no04/2661/.
 Unit 3: Preparing Bail and Other Applications

As an example of the efforts of the judiciary, in Supreme Court Legal Aid Committee v.
Union of India, the Supreme Court found the system under the Narcotic Drugs and
Psychotropic Substances Act (NDPS) of denying bail, coupled with delayed trials, as
violative of the right to a speedy trial, a corollary of the right to liberty guaranteed by
Article 21 of the Constitution.44 The Court provided that those who have undergone at
least half of the maximum punishment they could have received if convicted, or five
years if the term of punishment was 10 years imprisonment and a fine of Rs. 1 lakh,
should be released on bail with differing amounts based on the term of punishment.45

Going further, the Supreme Court in Common Cause v. Union of India issued various
directives for release of undertrial prisoners charged under most laws.46 Referring to
pending procedures as “an engine of oppression,” the Court lamented that the majority of
undertrial prisoners were poor members of society without access to any or adequate
legal assistance.47 As such, the court directed the release on bail or personal bond of
detainees, with different requirements for different categories of detainees.48 For
example, the Court ordered that a person charged with an offence punishable with
imprisonment of three years or less, whose trial has been pending for one year or more
and who had been in jail without bail for six months or more, should be released on bail
or personal bond. As another example, for a person charged with an offence punishable
by up to one year’s imprisonment, who has had her/his trial pending for one year or more,
even if not in jail, the courts should discharge or acquit the person and close the case.49

With the continued failure of implementation of Supreme Court directives related to

undertrial prisoners, such as those noted here, the government amended the CrPC to
provide a clear-cut rule for the release of prisoners awaiting trial.50 Although not as
beneficial to undertrials as the directives of the Supreme Court in Common Cause, the
amended code does provide for the release of undertrials in a straightforward manner.
Specifically, under 436A of the amended act, unless the Public Prosecutor successfully
argues particular reasons for other treatment, an undertrial prisoner must be released on a
personal bond with or without sureties if she/he has been detained for half of the
maximum term of imprisonment she/he could receive if convicted.51 In addition, all

44
Supreme Court Legal Aid Committee v. Union of India & Ors., 1994 SCC (6) 731.
45
Id.
46
Common Cause, A Registered Society through its Director v. Union of India & Ors., (1996) 4 SCC 33.
47
Id.
48
Id.
49
Id.
50
The Code of Criminal Procedure (Amendment) Act, 2005, sec. 36 inserting new sec. 436A.
51
Id.
 Unit 3: Preparing Bail and Other Applications

undertrials who have been detained for the maximum term of imprisonment they could
receive if convicted must be released.52

While this provision can serve as a welcome development for those who are released
under its provisions, it also poses the potential problem of institutionalizing a system
whereby people who have never been convicted of a crime are criminalized and
essentially remain guilty without trial for years equivalent to the sentences they would
receive in the event they happen to be found guilty. Completely reversing the
presumption of innocence, undertrials are in effect presumed guilty until proven innocent
and thereby face the punishments of incarceration before they have even been determined
to have done anything wrong. Thus, while 436A should be viewed as a positive
development and efforts must be undertaken to follow its provisions of release, advocates
must remain cautious of maintaining a status quo that accepts long term pre-trial
incarceration.

Following the adoption of section 436A, some High Courts have issued judgments
related to the continuing problem of undertrials. For example, in 2006, the Patna High
Court directed prison officials in the state of Bihar to inform undertrial prisoners who
meet the requirements of the new provision of their rights under the provision, to provide
legal aid where necessary, and to implement the measures necessary to ensure the
effective enforcement of the provisions of the amendment.53

Taken together then, some steps have been taken judicially and legislatively to attempt to
address the problems facing undertrial prisoners. Still, given the gravity of the problem
of incarcerating presumably innocent individuals for extended periods of time, these
efforts and their ineffectual implementation have fallen gravely short of the imperatives
of justice.

3.12 SUMMARY

Bail

¾ Bail: Monetary or other means of securing release from custody during the
pendency of a criminal investigation, trial, sentencing, or appeal.
¾ Accused person or surety must execute the bail bond, stating that she/he will
appear in court and will pay the penalty if she/he fails to appear.

52
Id.
53
In the Matter of News Reports Published in the Times of India dated 26 June 2006 v. State of Bihar &
Ors., 2006 CWJC 7363, Available at:
http://patnahighcourt.bih.nic.in/CJJudgements/CWJC%207363%20OF%202006%20_16.10.2006_.pdf.
 Unit 3: Preparing Bail and Other Applications

Bailable and Non-Bailable Offences

¾ Bailable: Generally less serious offences for which bail is a right

¾ Non-bailable: Offences for which courts have discretion as to whether to grant
bail
¾ An accused cannot receive bail if there are reasons to believe she/he is guilty of
offences punishable by death or life imprisonment, or for other reasons related to
previous convictions for serious crimes.

Release on Bail for Procedural Delays

¾ If investigation of a crime takes longer than 90 or 60 days, depending on the

severity of the crime, a person should be released on bail.
¾ If a trial lasts longer than sixty days past the original trial date, the accused should
be released on bail.
¾ In between trial and sentencing, a court should release on bail a person reasonably
believed to be not guilty.

Personal bonds

¾ Moti Ram: Indigent accused should have the opportunity to be released on

personal bond
¾ Hussainara Khatoon: Courts should release indigent accused who have roots in
the community and who are not likely to flee
¾ CrPC Amend. Act 2005: Indigent accused should be released on personal bond

Conditional and Anticipatory Bail

¾ Conditional Bail: A court has wide discretion in imposing conditions on bail for
individuals accused of certain offences
¾ Anticipatory Bail: A court has wide discretion in granting bail prior to the arrest
of someone who has reason to believe she/he will be arrested for allegedly
committing a non-bailable offence

Powers of High Courts. Courts of Session, Appellate Courts

¾ High Courts and Courts of Session can release any person on bail, and
modify/rescind conditions placed on bail.
¾ Appellate Courts have discretion to suspend a sentence and grant bail to someone
who appeals a criminal conviction, pending the appeal.

Undertrials

¾ Estimates suggest that more than 70% of the prison population, or hundreds of
thousands of individuals currently detained, have never been convicted of a crime
 Unit 3: Preparing Bail and Other Applications

¾ Common Cause: The Supreme Court laid out mandatory requirements for release
on bail or personal bond for undertrial prisoners in various circumstances
¾ 436A of CrPC: Undertrials who have served longer than the maximum sentence
they could face if they were convicted must be released; and those who have
served at least half of the maximum sentence must be released on personal bond
¾ Vast numbers of undertrial prisoners remain in prison, in a system where the
presumption of innocence has been reversed to effectively become a presumption
of guilt.

3.13 QUESTIONS FOR CONTENT

1. What is bail?

2. What is the difference in consequence with regard to bail for a bailable and a non-
bailable offence?

3. What does the CrPC Amendment Act of 2005 say about indigent defendants and
bail?

4. What is meant by the term “undertrials”?

Answers to Questions for Content

1. According to Ballentine’s Law Dictionary, bail is “the means of procuring the

release from custody of a person charged with a criminal offense or with debt by
assuring his future appearance in court and compelling him to remain within the
jurisdiction.”54

2. For a bailable offence, an accused person has a right to be released on bail. For a
non-bailable offence, the presiding court has discretion as to whether or not to
grant bail.

3. The Act states that all indigent defendants eligible for bail should be released on a
personal bond, and that anyone who has remained in prison without posting bail
within a week of arrest should be considered indigent for the purposes of the
provision.

4. Undertrials refer to those individuals who remain detained in prison prior to ever
having faced a completed trial or having been convicted of any crime.

54
Ballentine’s Law Dictionary, 3rd Edition, 1969.
 Unit 3: Preparing Bail and Other Applications

3.14 QUESTIONS FOR DISCUSSION

1. Why do you think that hundreds of thousands of people remain incarcerated

without ever having been convicted of a crime despite Supreme Court judgments
and legislative acts intended to curb that problem? What do you think can be
done to change the situation?

2. Do you think that individuals who have been accused of a crime and arrested
should be released from judicial custody pending investigation and trial? Under
what circumstances, if any, do you believe they should? Under what
circumstances, if any, do you believe they should not? Do the parameters you set
match those of the actual criminal justice system in India currently?

3. What do you think about a system that premises bail primarily on the ability of an
accused person to pay to secure his release, particularly in light of evidence that
the majority of undertrials are from poorer and marginalized backgrounds?

3.15 SUGGESTED FURTHER READING IN ADDITION TO CITED SOURCES

Rights Behind Bars: Landmark Judicial Pronouncements and National Human Rights
Commission Guidelines, Commonwealth Human Rights Initiative, 2009, Available at:
http://www.humanrightsinitiative.org/publications/prisons/rights_behind_bars.pdf.

Janak Raj Jai, BAIL: LAW AND PROCEDURES, 3rd Ed., (Universal Law Publishing 2004).