white black legal international law journal ISSN: 2581-8503

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BAIL A MATTER OF FUNDAMENTAL RIGHT OR DISCRETION. by - Ravi Kumar Dwivedi & Deep Kumar Dwivedi



Authored by - Ravi Kumar Dwivedi,

 B.Tech., B.Sc., LL.B (Delhi University),

Student of Post Graduate Diploma in Cyber Law- Indian Law Institute,

 Supreme Court Compound, New Delhi

LL.M (Criminal Law), Pursuing from AIALS, Amity University, Noida.

Co-Author - Deep Kumar Dwivedi,

 B.Sc., LL.B,

Student of Post Graduate Diploma in Cyber Law, Indian Law Institute,

 Supreme Court Compound, New Delhi




In India, the bail is assumed to be a fundamental right and it connects to the liberty of a person as per Article 21 Indian Constitution. The bail allows the accused to carry out his daily work and attend the proceeding. There are many legal provisions of getting bail and judicial decisions. The court examines bail applications very carefully and judicially. The nature of offence decides about the granting of bail. The aim of this article is to see if bail is a right or discretion.



The bail has been treated as a matter of right, because in most of the cases its observed that accused is falsely implicated by the complaints in order to take revenge from the accused. An Accused person is treated innocent until is proven guilty. There are various judgements and provisions for granting bail. The aim of this article is to see if bail is a right or discretion.




The historical concept of the bail has deep roots in the English and American criminal justice system. In England, it was started long time ago, when untried Prisoners who were in jail were found to be suffering from various serious diseases and unable to cure themselves, dur- ing pendency of their trials, which were delayed and delayed. The prisoners were given bail, on a condition that the accused person will appear and phase trial. Eventually, it became a practice and this being incorporated in all criminal procedure code across the globe and also in India criminal justice system. The bail is provisioned in code of criminal procedure 1973.


Meaning of bail

The word bail word is not defined in criminal justice system or the Criminal Procedure Code 1973, the dictionary meaning is “security for appearance of the accused person who is re- leased, pending trial”. The word bail means to set person on liberty.


Bail in criminal procedure code,1973

In Criminal Procedure Code 1973, section 436 mentions about case in which bail has to be taken, section 437 mentions about bail in non bailable offence and in section 438 it says about granting a bail to a person who is apprehending arrest.


Bail in Bailable Offence

In criminal procedure code, section 436 mentions about bailable cases in which bail has to be given to the accused. This provision is absolute and the magistrate is duty bound to give bail to accused.


Bail in Non-Bailable Offence

In criminal procedure code, section 437 mentions about non-bailable cases in which bail has to be given or not. While giving this bail, the court examines the bail application judicially and exercise his application of mind, on the case before him, which mentions about non- bailable offence or offences, before granting bail, the court has to satisfy the reasons & cir- cumstances in the interest of justice to grant bail to the applicant or accused person against who a criminal case is pending. Granting of bail is guided by the fact and circumstances of the case in hand, nature of offence, the legal provisions & settled judicial principles before the court. While deciding the bail application, the court must look into the concerning facts and the circumstances, and the gravity of the offence, and accused background and his past involvement, if so any. The court cannot exercise any arbitrariness or biasness while consid- ering the bail application or granting the bail to the accused person or persons. The court must do the application of mind very carefully, with utmost care and caution. The court must even ensure that the accused cooperate with investigating agencies and also attend the pro- ceedings as and when is required.


Anticipatory Bail

In criminal procedure section 438 mentions about anticipatory bail, in this, the court issue’s a direction to person who is having an apprehension of arrest to get bail in the event of his ar- rest. This is a safeguard provision to persons who are being implicated in false criminal cases by complainant or implicated in false police case. The court examines anticipatory bail appli- cation as per the settled principles or judicial decisions & as per the provisions of law. While deciding the anticipatory bail application, the court must Consider the relevant facts, which are in existence, which give rise to injustice victimization of applicant or accused person, who was unnecessarily implicated or dragged in false criminal case, with the object of achieving some hidden agenda or ulterior motives. The court must look into the reasonable and the genuine apprehension of the arrest of accused or the applicant person, who is seeking anticipatory bail from the court. The court must not act in arbitrary or biased manner, rather than looking into the genunity of the matter and the appropriate grounds and concerns of the applicant or the accused persons. it is very important for the court to not to conduct a mini trial, but on the basis of facts and circumstances, and their relevant matter and the records produced before the court must be taken into consideration, with the application of judicial mind. The court must sparingly use its power in arriving at a conclusion, which is the basis of granting or dismissing the anticipatory bail application. The court must ensure that no injus- tice is being done to the applicant or accused persons.



Cancellation of Bail

In criminal procedure code, section 437(5) & section 439(2) mentions about the cancellation of bail, if bail conditions are not complied with, which means if accused is not following strictly the bail conditions, then the court has power to cancel bail, and direct order for arrest of accused and commit accused to the custody. The court has a power to cancel the bail granted, if the accused person is not complying or following the bail conditions as mentioned in the bail order. The purpose of bail is to give accused person a conditional liberty which is subjected to the terms and conditions of the grant of bail, if the accused person is not adher- ing to the bail conditions, then the court has power to order for cancellation of bail, and order for the arrest of accused person, and commit him to the custody, so that the purpose of bail should not get frustrated.


Is bail a matter of fundamental right?

In criminal matters, their no absolute right of Bail, it depends on facts and matter of the case and seriousness. The Judge has absolute power to decide on bail matters to grant or refuse bail in cognizable offences. The Judge has to look into the welfare of the state and also the aspect of granting liberty in the form of bail to the accused. The police officer can grant bail under section 436 of code of criminal procedure,1973 and if he fails to provide bail to ac- cused person then he can approach concerned court which will grant him bail.


Legal framework & judicial decisions on bail

In various matters related to bail, there is no fixed formula to give bail, it depends on the facts of the case and is decided on case-to-case basis, few of the cases are mentioned below:


State (Delhi Administration) Vs Sanjay Gandhi [1978 19 Cr. L.J. 952 (SC)]

In the famous case of “Kissa Kursi ka”, a film, based on the political life of Sanjay Gandhi and his mother Indira Gandhi was in issue. The respondent got anticipatory bail and it was challenged in the Delhi High Court against the anticipatory bail granted, as the accused was found influencing the witnesses. So, the High Court has emphasized on the power to take back the accused in custody, the person who has been given bail has to be exercised with care.


Moti Ram Vs State of MP, (AIR 1978 SC 1594)

In this case the apex court has reiterated again that the right to be released on bail under sec- tion 436 of code of criminal procedure 1973 cannot be nullified, because the accused cannot furnish Bond as the amount is very high or he has no sureties with him.



In criminal justice system in India, the purpose of bail has to be seen and implemented in a way so as to maintain a balance between liberty and interest of the state, but this interest has to be a real interest and not the created political story or frivolous case to settle scores or to take revenge. In the above article, the authors have tried their best to give brief about bail a matter of right or discretion and also cited few case laws on the same. So, on the basis of above discussion in the article, we can conclude finally that it should be in the interest of jus- tice to grant bail and not under any influence and this power lies with court concerned, and court must exercise this power judiciously.



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