DR.

RAM MANOHAR LOHIA NATIONAL

LAW UNIVERSITY, LUCKNOW

2020-25
The Code of
Criminal Procedure

Bail Provision under Code of Criminal

Procedure

Submitted By:- Submitted To: -

Devanshi Singh Mr. Prem Kumar Gautam

200101061 (Crpc Prof)

Sem- V RMLNLU
ACKNOWLEDGEMENT
I have taken efforts in this project. However, it would not have been possible without the
kind support and help of many individuals. I would like to extend my sincere thanks to all
of them.

I am highly indebted to Mr. PREM KUMAR GAUTAM for his guidance and constant
supervision as well as for providing necessary information regarding the project and also
for their support in completing it.

I would like to express my gratitude towards my parents for their kind co-operation and
encouragement which helped me in completion of this project.

My thanks and appreciations also go to my colleagues in developing the project and

people who have willingly helped me out with their abilities.

- Devanshi Singh
Table of Contents
CONCEPT OF BAIL..................................................................................................................................4
PRINCIPLES OF BAIL...............................................................................................................................5
PURPOSE AND OBJECTIVE.....................................................................................................................5
TYPES OF OFFENCES..............................................................................................................................6
BAIL AS A MATTER OF RIGHT.................................................................................................................6
I. BAILABLE OFFENSE ACCUSED OF BY THE ARRESTEE..................................................................6
II. SECTION 436-A...........................................................................................................................9
III. THE INVESTIGATION WAS NOT FINISHED IN THE ALLOCATED TIME...........................................10
IV. THERE IS NO REASONABLE GROUND FOR BELIEVING THE ACCUSED GUILTY OF A NON-BAILABLE
OFFENSE..........................................................................................................................................10
V. MAGISTRATE TRIAL DID NOT END IN 60 DAYS.............................................................................10
ARTICLES 21 AND 22 READ WITH ARTICLE 39A REFERS TO THE RIGHT TO BAIL AND THE RIGHT TO
FREE LEGAL AID...................................................................................................................................10
Conclusion...........................................................................................................................................11
Judicial Trend...................................................................................................................................12
BIBLIOGRAPHY.....................................................................................................................................14
 CONCEPT OF BAIL

Bail has a long history and strong foundations in both English and American law. The
practise originated in mediaeval England as a result of the need to release untried inmates
from infected cells as they waited for the dragged-out trial conducted by travelling judges.
Prisoners were released on bond or handed over to trustworthy individuals of their choosing
who agreed to be responsible for ensuring their attendance at trial. In the event that the
defendant is not present, his bailer will be tried in his stead.

In the Code of Criminal Procedure, term bail is not specifically defined. It is derived from the
Latin term "Bajulare," which means "One who bears," and the French word "Bailer," which
means "To Give." It refers to a release from legal custody, which can occur in either an arrest
or a surrender before a judge. The petition for bail can then be submitted.
The court has the authority to free the offender on his own recognisance or without posting
bail, according to American Jurisprudence, Article 6, Page 785. Similar to this, Webster's
Third New International Dictionary defines bail as "the procedure through which a person is
freed from custody."

Bail, according to the law, is the process of obtaining a person's release from custody while
they are awaiting trial or an appeal by posting a security deposit to guarantee their timely
submission to the appropriate authorities.

Bail is described as "Security for the attendance of the accused when he is freed pending trial
or inquiry" in the Law Lexicon Dictionary.

Black Law Dictionary states that the purpose of a bond is to secure a person's release from
detention by promising that they will appear at the appointed time and location and submit to
the jurisdiction and ruling of the court.

Bail is intended to "get the release of a person from legal detention, by undertaking that he
shall appear at the time and place indicated and submit himself to the authority and
judgement of the court." In reality, a person who has been granted bail is considered to be in
the court's custody.
In the common meaning, the term "bail" refers to a court release from custodia juris. The rule
that bail is the norm and jail is the exception is followed in modern society.

PRINCIPLES OF BAIL

A few guidelines that are followed while awarding bail include the following:

 An accused individual is entitled to be freed on bond since they are deemed innocent
until proven guilty; and
 Bail can be given at any point of the process, including after the start of the trial.

It's crucial to understand that the issue of bail only comes up after someone has been arrested.
In essence, the state must balance societal expectations with individual desires, and bail is
one way they do this through the media. As the trial may last for years, it was indicated that
the defendant could not be detained for years.

PURPOSE AND OBJECTIVE

The primary objective of an arrest is to guarantee the accused person's availability at the time
of his investigation or trial and to make sure he is accessible to accept a sentence if found
guilty. If this goal can be accomplished without requiring the accused to be detained
throughout the investigation or trial, it would be the perfect way to reconcile two seemingly
opposing objectives, namely, the freedom of an individual and the interests of justice. The
bail provisions were developed with the intention of restoring the accused person's liberty
without endangering the reasons for the arrest.

The release on bail is crucial to the accused because if it is denied, it would mean that even
though he is presumed to be innocent till the guilt is proved beyond reasonable doubt, he
would be subjected to the psychologoical and physical deprivations of life. The jailed accused
fails to contribute effectively to the preparation of his defense and the burden of which then
falls heavily on the innocent family members. Therefore, the law of bail attempts to devise
such a system and to operate it in such a manner as to enable it to release on bail maximum
number of accused persons without seriously endangering the objectives of arrest and trial.

Certain objectives for which bail is given are:

 To justify the fundamental principle of presumption of innocence in Criminal

jurisprudence.
 To ensure personal liberty as provided in Article 21 of the Constitution of India.
 One can prepare one’s defence well.
  Saves from social stigma.
 To avoid psychological pressure when he is in jail.
 Family may suffer from financial loss.
 It suits the state as well because otherwise it will be burden on state exchequer.
 International movement that non custodial matters shall be adopted to improve
criminal justice system across the globe.

TYPES OF OFFENCES

The Code of Criminal Procedure has classified offences in two categories:-

 Bailable offences
 Non-bailable offences

The words bailable offence and non-bailable offence are clearly defined in Section 2 (a) of
our Code of Criminal Procedure 1973, despite the fact that bail is not defined in the Code.

Section 2(a) provides that :

Bailable offence” means an offence which is shown as bailable in the first schedule or which
is made by any other law for the time being in force and “non-bailable offence” means any
other offence.’

It will be seen that code has not given any specific test to determine whether offence is
bailable or non- bailable. It all depends upon what it has been shown in the first schedule of
the code

BAIL AS A MATTER OF RIGHT

I. BAILABLE OFFENSE ACCUSED OF BY THE ARRESTEE

The 1973 Code of Criminal Procedure contains rules for the release of suspects on bail. In
situations when a crime qualifies for bail, bail may be released under Section 436 of the
Code. This section covers all cases involving people who have been charged with crimes that
are subject to bail, all cases involving people who have not been charged with any crimes but
have had security proceedings brought against them under Chapter VIII of the Code, and all
other cases of arrest and detention that are unrelated to crimes that are subject to bail. (284
Kelkar)

SECTION 436 OF THE CRIMINAL PRODECURE CODE, 1973 is as follow:

 (1) When any person other than a person accused of a non-bailable offence is arrested or
detained without warrant by an officer in charge of a police station or appears or is
brought before a court and is prepared at ay time while in the custody of such person
shall be released on bail:

Provided that such officer or court if he or it thinks fit may (may and shall if such
person is indigent and is unable to furnish surety instead of taking bail) from such
person discharge him on his executing a bond without sureties for his appearances as
hereinafter provided:

(Explanation – where a person is unable to give bail within a week of the date of his
arrest it shall be sufficient ground for the officer or the court to presume that he is an
indigent person for the purpose of this proviso.)
Provided further that nothing in this section shall be deemed to affect the provisions of
sub-section
(3) of section 116 [or section 446A.]

(2) Notwithstanding anything contained in sub section (1) where a person has failed to
comply with the conditions of the bail-bond as regards the time and place of
attendance the court may refuse to release him on bail when on a subsequent occasion
in the same case he appears before the court or is brought in custody and any such
refusal shall be without prejudice to the powers of the court to call upon any person
bond by such bound to pay the penalty thereof under section 446.

Release on bail is a matter of right, according to Section 436 (1) of the Code, which means
that the officer in charge of a police station or any court has no authority to refuse bail in
these circumstances. The word "appear" in this sub-clause is broad enough to cover a person's
voluntary presence even in the absence of a summons or warrant being issued against him.
Nothing in S. 436 implies that an accused person's attendance must be in compliance with a
court order or excludes voluntary appearance. In addition to the accused's physical
attendance, they must also submit to the court's authority and rules.
The accused may be granted bail and released from such confinement if they surrender and
are physically present along with their submission to the court's jurisdiction and orders.
The High Court or Sessions Court may be asked for bail under Section 439 even if there is no
particular mechanism for an appeal against a refusal to grant bail under Section 436(1).
Additionally, if bail is denied in violation of Section 436, the detention is unlawful, and the
police officer who ordered the custody may be charged with wrongful imprisonment under
Section 342 of the IPC.
A clause in Section 436's subsection (2) states that, even if a person is brought before the
court on a future occasion but has previously been released on bail in a bailable matter and
has absconded or violated the terms of his bail bond, they will not automatically be entitled to
bail. There may be a bailable crime. In addition, the High Court or the Sessions Court may
revoke a person's bail and commit him to jail if they engage in actions that are wholly
contrary to a fair trial in court after being released on bail under Section 436 (1).
The change to Section 436 mandates that if a person is truly impoverished, the court or the
police officer must release him on his own surety. The court will be assisted in releasing the
offender without a surety by the justification added by Act 25 of 2005. It may be assumed
that the accused is poor if he is unable to request bail with bond for a week. If the individual
who was freed in this manner fails to appear in court.

In Morit Malhotra v. State of Rajasthan, the accused was given bail by the police according to
section 436. However, he was recommended to get court-issued bail when he appeared before
the judge. He appealed the Rajasthan High Court's decisions that it is not required for an
accused person to get court-granted bail if the police had already done so. The Supreme
Court's ruling in Free Legal Aid Committee, Jamshedpur v. State of Bihar15, which held that
in a sessions case if the magistrate has granted bail, the accused need not seek bail from the
court of sessions, was cited by the court as grounds for its judgement.
It appears that the aforementioned decision may not be widely adhered to by courts given the
nature of the person on bond's connection with the court and the powers granted to the court
under section 436.
The legitimacy of bail issued by police personnel was a topic of discussion in Haji Mohamed
Wasim v. State of U. P.16 before the Allahabad High Court. In this instance, the defendant
who had been given bail by the police opted not to appear in court. A non-bailable warrant
issued by the trial court was contested by the defendant under section 482. obtaining new bail
from the trial court. In cases where the only evidence is that of a bailable offence, in which
case he may take security for the accused's appearance, it was reasoned that the police officer
in charge of a police station's authority to grant bail and the bail that was granted by him ends
with the conclusion of the investigation. On a set day or every day until further notice, before
the magistrate. No parity may be claimed with a magistrate's order in light of the enabling
provision in clause (b) of section 209....under which the committal magistrate has the
authority to give bail until the end of the trial, whereas the magistrate's power was previously
limited to grant of He posted bail while the committal process was ongoing in accordance
with clause (a) of section 209.10 The reality of the issue, as it exists in today's society, makes
it quite evident that police discretion is not always correctly used while making arrests. Due
to the police's excessive severity with the general population and the suspects in particular,
citizens are losing their freedom, and the police have taken on the role as a source of fear for
them.
INGREDIENTS

 A person gets detained if they commit a crime that is subject to bail.

 The individual is detained without a warrant

 The court or police official has the jurisdiction to release the accused or arrested
person on bail after executing a bond with/without

Section 50(2) makes it necessary for a police officer arresting such a person without a
warrant to tell him of his right to be freed on bail. Release on bond is a matter of right,
according to Section 436 (1) of the Code, which means that the officer in charge of a police
station or any court has no authority to refuse bail in these circumstances.

II. SECTION 436-A

Inmates who were awaiting trials and were idling in jails would no longer have to wait
interminably for their trials according to the new provision Section 436A. Instead, they will
have the chance to be released. This action was taken as a result of a broken criminal justice
system and offers under trial inmates a temporary solution for justice and relief. This seems
to indicate that the Legislature and the Government have come to terms with the flawed
system's existence and their helplessness to fix it. Section 436 A was added with this goal in
mind.
S. 436-A states that someone who has been detained for a period of time up to half the
maximum sentence allowed for a certain violation must be released on their own personal
bond, with or without sureties. The court must hear the public prosecutor according to the
prescribed procedure before putting down its decision and justifications. If not satisfied, the
court may order the applicant's continuing detention. The court may also release the
applicant. However, no prisoner may be held over the allotted maximum duration of
incarceration. The section's exemption is that it does not apply to criminals who have
received a death sentence.
III. THE INVESTIGATION WAS NOT FINISHED IN THE ALLOCATED TIME

IV. THERE IS NO REASONABLE GROUND FOR BELIEVING THE ACCUSED

GUILTY OF A NON-BAILABLE OFFENSE.

When a person is arrested or detained without a warrant by a police officer in charge of a

police station, or when that person appears in court or is brought there, and if it becomes
apparent to that officer or the court at any point during the investigation, inquiry, or trial that
there are insufficient grounds for further entrapment but no reasonable grounds for believing
that the accused has committed a non-bailable offence, a policeman or Any officer or judge
that releases a person on bail in accordance with this clause must give written justification.

V. MAGISTRATE TRIAL DID NOT END IN 60 DAYS

If, in any case triable by a magistrate, the trial of a person accused of any non-bailable
offence is not completed within 60 days of the first date set for taking evidence in the case,
such person shall, if he is in custody for the entirety of the said period, be released on bail to
the magistrate's satisfaction, unless the magistrate otherwise directs for reasons to be recorded
in writing. [437(6)] Cases that can be heard by the Sessions Court are exempt from this
clause.

ARTICLES 21 AND 22 READ WITH ARTICLE 39A REFERS

TO THE RIGHT TO BAIL AND THE RIGHT TO FREE
LEGAL AID.
According to criminal law, Article 21 of the Constitution enshrined the most significant
human rights. The Supreme Court has maintained, for nearly 27 years after the Constitution
was passed, that this Article merely embodies one aspect of the Dicey on concept of the rule
of law, which states that no one may be deprived of his or her life or personal freedom by an
executive action that is not authorised by law. A person's life and personal freedom might be
taken away simply by following a law's specified method.

There is no expressly listed constitutional right to legal representation for an accused

individual under the Indian Constitution. According to the interpretation given to this
provision by the Supreme Court in Janardhan Reddy v. State of Hyderabad, AIR 1951 SC
227. this provision does not carry with it the right to be provided the services of legal
practitioners at state expense. Article 22(1) does provide that no person who is arrested shall
be denied the right to consult and to be defended by a legal practitioner of his choice. Also
The 1976-introduced Article 39-A establishes a requirement that the state must offer free
legal assistance by appropriate laws, programmes, or other measures to guarantee that people
have access to justice not be withheld from any citizen because of their financial situation or
other disabilities; this, however, continues to be a Directive Principle of State Policy, which,
while imposing a duty on the State, does not establish a duty that can be enforced in court and
does not grant the accused the constitutional right to unrestricted access to counsel.
However, after Maneka Gandhi's case, the Supreme Court creatively interpreted Article 21 to
close this constitutional vacuum. In M.H. Hoskot v. State of Maharashtra, an AIR 1978 SC
1548nd Hussainara Khatoon's case, the Supreme Court ruled that a procedure that denies
legal services to an accused person who is too poor to afford a lawyer and would, as a result,
proceed through the trial alone cannot be regarded as reasonable, fair, and just. An essential
component of the reasonable, fair, and just procedure established by Article 21 is the
provision of legal assistance to a prisoner who wishes to pursue his release through the
judicial system.

Any reasonable, fair, and just procedure for a person accused of a crime must include the
right to free legal representation, and this right must be seen as inherent in the protection
provided by Article 21.

Conclusion
Unjustly long periods of imprisonment before people awaiting trial can receive the attention
of the administration of justice are in clear violation of all civilised norms of human liberty,
and this is why any meaningful concept of individual liberty that serves as the cornerstone of
a civilised legal system must be viewed with distress. In order to prevent injustice, humanise
the criminal judicial system, and make it more sensitive to the needs of individuals who
would otherwise be sentenced to languish in jails for no other reason than their incapacity, the
law of bails must continue to provide for appropriate discretion in all circumstances.

As a last point, it would be appropriate to call attention to the lack of a specific clause in the
Code of Criminal Procedure that would permit the release of a prisoner who is awaiting trial
on his bail without sureties or any other financial obligation under the wrong circumstances.
A precise provision is urgently required. Undoubtedly, among the thousands of convicts who
are now awaiting trial and are housed in Indian jails, a large number are unable to gain their
release before trial because they lack the necessary FINANCIAL guarantee for their
presence. If that is the only justification for their continuing detention, there may be
something to a claim of reprehensible discrimination.

Even more so in a system with a constitution that guarantees social equality and justice for all
of its inhabitants. A society that strives to attain these fundamental goals would find it strange
to restrict someone's freedom just for financial reasons. If proper provision were established
in the act for non-financial releases, it seems to me that our lawmakers would take a vital step
in defence of individual liberty. There are enough safeguards for appearance in the variety of
issues to which reference has already been made.

Judicial Trend
An examination of the ensuing instances demonstrates how the poor are negatively impacted
by India's unfair bail system. In State of Rajasthan v. Balchand [14], the trial court found the
defendant guilty. The High Court upheld his acquittal when he filed an appeal. In accordance
with Article 136 of the Constitution, the State filed a special leave petition to appeal to the
Honourable Supreme Court. The judge ordered the accused to show up. Then he made a bail
request. Justice Krishna Iyer spoke out against this unjust bail management system at that
point for the first time. Although the practise of financial bail has a long history, he claimed
that it is time to reconsider. It's possible that an endeavour would be useful in most situations.
In Moti Ram and Ors. v. State of M.P. [15], the poor mason accused was found guilty.
Without providing any details on sureties, bonds, or other conditions, the Chief Judicial
Magistrate was directed to grant him a larger bail amount by the Supreme Court. The CJM
claimed full responsibility for the situation, set a surety and bond amount of Rs. 10,000, and
further refused to allow his brother to serve as a guarantee because of the location of his
property in the next hamlet. The Supreme Court heard MR's petition once again, and Justice
Krishna Iyer criticised the CJM's actions and urged courts to be more inclined toward
granting bail than imprisoning people.

Justice Krishna Iyer once more came up against the unjust bail system that was in place in
India in Maneka Gandhi v. Union of India [16]. Although the offences are divided among
those that are and are not subject to bail, there is no definition of bail in the legislation.
Further, Justice P.N. Bhagwati discussed how the bail system is unfair and discriminatory
when viewed from a person's economic perspective. This discrimination occurs even if the
amount of bail set by the magistrates isn't high for some, but the vast majority of those who
are brought before the courts in criminal cases are so impoverished that they would find it
difficult to provide bail even if it's a small amount.

Further, the court established in Hussainara Khatoon and Others v. Home Sec, State of Bihar
that a man shall be freed from custody if he has been imprisoned for a period of time that
exceeds the term to which he is entitled.
BIBLIOGRAPHY

 Shailender Malik, The Code of Criminal Procedure 616 (Allahabad Law agency, Faridabad
(Haryana), 18th edition 2012).
 K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure 290 (Eastern book company,
Lucknow, 6th edition 2015).
 Black’s Law Dictionary (4th Edn.) 177.

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