CHAPTER – III

LEGAL FRAMEWORK IN INDIA : LAWS AND REGULATIONS.

INTRODUCTION

In the Code of Criminal Procedure 1973, offences are divided into two categories: bailable
and non-bailable, primarily based on the gravity of the offence and the associated punishment.
Typically, bailable offences are perceived as less serious. However, there are exceptions to this
general rule, especially concerning offences punishable by imprisonment for three years or more,
which are considered non-bailable. Section 2(a) of the Cr.P.C. defines bailable and non-bailable
offences, stating that bailable offences are those listed as such in the First Schedule or designated
as such by other laws in force, while non-bailable offences encompass all other offences.

Although the Code does not provide specific criteria for classifying offences as bailable or
non-bailable in the First Schedule, individual offences under the Indian Penal Code (IPC) are
explicitly labeled as such in the first part of the First Schedule to the Cr.P.C. In cases where no
such designation exists under the relevant Act, the general guidelines outlined in the second part
of the First Schedule to the Cr.P.C. are consulted to determine the classification.

Regarding bail, Chapter XXXIII addresses the granting of bail to accused individuals before
trial and conviction. Notably, there is no provision within this chapter for granting bail to
individuals who have already been tried and convicted. The only mention of bail for convicted
individuals is found in Section 389, which falls under Chapter XXIX of the Code, titled “Of
Appeals.” This section deals with the authority of the appellate court to grant bail to convicted
individuals pending their appeal. Section 389 specifically addresses the power to grant bail to
individuals convicted of non-bailable offences, provided they satisfy the court that they intend to
appeal against their convictions. Against this backdrop, this chapter aims to explore the legal
framework concerning bail comprehensively.

3.1 BAIL IN BAILABLE OFFENCES (SECTION 436)1

The notion of bail arises from the tension between the State’s authority to detain individuals
accused of crimes and the presumption of innocence in their favor. Bail serves as a mechanism
through which the State delegates to the community the responsibility of ensuring the presence of
accused individuals while involving community participation in the administration of justice 2. The
provisions governing bail are outlined in Chapter XXXIII of the Cr.P.C., spanning sections 436450.
Offences are categorized into bailable and non-bailable, as well as cognizable and noncognizable.
Cognizable offences permit police investigation without prior authorization from a Magistrate,
whereas non-cognizable offences require Magistrate approval before police investigation can
commence. Authorities such as the officer-in-charge of a police station, Magistrates, Sessions
Courts, and High Courts are empowered under the Cr.P.C. to handle matters related to bail,
including imposing conditions, canceling bail, or granting anticipatory bail.

A. Statutory provision.

Section 436 of the Cr.P.C 3. delineates the procedure for granting bail in cases of bailable
offences. This section establishes bail as an incontrovertible and absolute entitlement. Its language
is imperative, leaving no room for discretion in the bail-granting process. Any individual accused
of a bailable offence, whether apprehended without a warrant or presented before a court at any
juncture of the legal proceedings, possesses the unequivocal right to be granted bail pursuant to

1
The code of criminal procedure 1973
2
Vaman Nariyan Ghiya v. State of Rajasthan,AIR 2009 SC 1362
3
Code of criminal procedure 1973
Section 436 of the Cr.P.C. 1973. When a bailable offence is at hand and the accused is willing to
provide bail, a police officer is devoid of the authority to refuse bail, as discretion is precluded.

Section 436, in its first subsection, mandates the release on bail of any individual, except
those accused of non-bailable offences, who is detained without warrant by a police station officer
or brought before a court. However, the officer or court may, at their discretion, release the
individual by having them execute a bond without sureties, particularly if the person is indigent
and unable to provide surety. Additionally, if an individual fails to comply with the conditions of
the bail bond regarding time and place of attendance, the court may refuse bail upon subsequent
appearances without prejudice to its power to enforce penalties for bond violations under Section
446. The first proviso of Section 436 was modified by the CrPC (Amendment) Act 2005,
compelling the court to release individuals arrested or detained for offences other than non-bailable
offences if they are indigent and unable to provide bail with surety, by furnishing a bond without
sureties. Moreover, the amendment introduced an explanation stating that if a person is unable to
provide bail with surety within a week of arrest, the officer or court may presume that the person
is indigent.

B. Scope of section 436.

Section 436(1) of the Criminal Procedure Code (CrPC) establishes bail as an inherent right.
It states that any person, except one accused of a non-bailable offence, who is (1) arrested or
detained without warrant by a police station officer-in-charge, or (2) appears or is brought before
a court and is willing to furnish bail at any point while in the custody of such officer or at any stage
of the court proceedings, must be granted bail. Therefore, if an arrested person is accused of
bailable offences, unnecessary barriers should not hinder their access to bail. This section is
mandatory, compelling the magistrate to release the person on bail or recognizance. However, bail
presupposes the release of a person from legal custody, implying that they are under restraint. Bail
cannot be granted to someone who is not under such restraint 4.

The term "appearance" In this section encompasses voluntary surrender. When an individual
surrenders, they are in the judicial custody of the court, and the magistrate cannot reject bail on the
grounds that the person was neither arrested nor summoned by the court or appeared in response
to the court’s summons 5.

A person other than one accused of a non-bailable offence primarily refers to someone
accused of a bailable offence. However, the scope of Section 436 of the CrPC covers any person
arrested or detained by the police or appearing or brought before a court, even if they are not
accused of a bailable offence. This section is intended to cover all individuals except those accused
of non-bailable offences. Its provisions are extensive enough to include not only accused persons
but also individuals against whom complaints are lodged and who are present before the court,
even if they have not been named as accused persons by the police.

The fundamental principle of our justice system Is that individuals should not be deprived of their
liberty unless they have clearly violated the law. If there is no substantial risk of the accused fleeing
or obstructing justice, they should be granted bail. Refusal of bail constitutes a restriction on
personal liberty guaranteed by Article 21 of the Constitution, and thus bail must not be refused. In
cases where delays occur in the disposal of criminal proceedings, the accused should not be held
in custody for an excessively long period and should be released on bail unless extremely rare
circumstances prevent it.

C. Conditions for applicability of section 436.

4
Bhramar v. State of Orissa, 1981 CrLJ 1057.
5
M.R.Mallick,Bail Law and Practice243(Eastern Law House,New Delhi,5th edn.2014)
Section 436 of the Cr.P.C applies in the following scenarios:

1. When a person is arrested or detained by an officer-in-charge of a police station, commonly

referred to as the Station House Officer (SHO) or Thana in Charge.

2. When an accused person voluntarily appears before the court.

3. When an accused person is brought to the court by the police.

This section also empowers the SHO or court to release a person from custody by executing
a bond to appear in court without requiring sureties. This means that a person can be released based
on their own undertaking.

• Release by Police:

A person arrested or detained and accused of a bailable offence must be released by the
officer in charge of a police station if the person is willing to provide bail. The police officer does
not have the authority to refuse bail but only has the discretion to release the accused person on
their personal bond or with monetary sureties. Section 50(2) of the CrPC mandates that the police
inform the arrested person of their right to be released on bail for bailable offences.

•. Production before Magistrate:

If the accused person is unable to furnish bail and is not released by the police, they must be
brought before a Magistrate within 24 hours of their arrest, excluding journey time from the place
of arrest to the court. This provision is a fundamental right guaranteed under Article 20(3) of the
Constitution. Section 57 of the CrPC also prohibits police officers from detaining anyone beyond
24 hours without producing them before a Magistrate.

•. Release by Magistrate:

If the accused is ready to furnish bail before the Magistrate, they must be released. Typically,
an accused person is first presented in the court of a Judicial Magistrate. The Magistrate does not
have the discretion to refuse bail; their only discretion lies in either releasing the accused person
on their personal bond or requiring them to furnish bond with sureties. It is the duty of the
Magistrate to inform the accused of their right to be released on bail.

Section 436 of the Cr.P.C must be interpreted in harmony with other provisions of the Code,
particularly sections 50, 56, and 57. These sections, read together, uphold the constitutional
mandate of Article 22, which guarantees certain rights to a person arrested. Section 50 requires
police officers to inform the arrested person of the grounds of arrest and their right to bail. Section
56 mandates the prompt production of the arrested person before the Magistrate or officer-incharge
of the police station without unnecessary delay, and Section 57 sets a maximum limit of 24 hours
for police custody before production before the Magistrate 6.

D. provisions of section 436 are mandatory.

The provisions outlined in Section 436 of the Cr.P.C are obligatory. Neither the officer-
incharge of the police station nor the court holds any discretion in this regard. When an individual
is arrested and is willing to provide bail for a bailable offence, they must be released on bail. In
such cases, the police officer has no authority to deny bail; their only discretion lies in releasing
the individual either on their personal bond or with sureties.

In the case of Dharmu Naik v. Rabindranath Acharya, it was determined that in situations
involving bailable offences, the police officer must release the accused on bail as long as they are
prepared to provide surety, regardless of whether a bail order is presented. The High Court
concluded that the police officer unlawfully detained the accused despite their previous release on
bail by the Magistrate. It was emphasized that in bailable offences, the police officer lacks
discretion to refuse bail as long as the accused is ready to furnish surety.

6
Pravinkumar Chandrakant vyas v. State,2001(3) GLR 2755
 For bailable offences, the Magistrate cannot authorize the detention of the accused in police
custody to aid in the investigation. Additionally, the Magistrate cannot direct the accused to appear
before the police for investigation. If the accused does not provide bail as directed by the police
officer, they must be brought before the Magistrate within 24 hours of arrest, as stipulated in
Section 57 of the Cr.P.C. Upon appearing before the Magistrate and being prepared to provide bail,
the accused must be released on bail. The Magistrate holds no discretion in this matter; their only
decision is whether to release the accused on their personal bond or to require sureties.

The right of an arrested person accused of a bailable offence to seek release by offering bail
to the police or to the Magistrate upon being produced before them is absolute and cannot be
restricted by any executive instructions or circulars 7.

E. Conditions can be imposed in bailable offences.

While releasing a person concerned with commission of a bailable offence whether the court
is entitled to impose certain conditions was one of the main issues recently dealt with and answered
by the Gujarat High Court in Shantilal Javerchand Jain @ Shantilal Zhaverilal Jain v. State of
Gujarat8 The court held that the court can impose relevant conditions while releasing an accused
alleged to be guilty of a bailable offence as there is no specific restriction in Cr.P.C. on the court’s
power to impose relevant conditions. The court held:

“The conditions are normally imposed in order to strike a balance between the right of the
accused and the right of the prosecution. The accused is released on bail to avoid unnecessary
confinement. At the same time the right of the prosecution is preserved or protected to secure the
presence of the accused for the purpose of trial… The concept of bail find its origin in the genesis
of basic human rights.
The court is under an obligation to strike a balance between the two conflicting claims. On
the one hand, the society to be shielded from hazards of misadventures of a person who is alleged
to have committed crime, and on the other hand, the fundamental canon of criminal jurisprudence

7
Supra Note 9
8
2012(1) GLR 902
that a person is presumed to be innocent till he is found guilty, and the aspect of liberty which is
one of the most important basic human right, which require consideration.
In other words, even if such liberty is required to be curtailed or regulated, it has to be with utmost
care that it balances the individual right and the rights of the society as a whole. Admittedly, there
is no statutory provision which suggest that no such condition can be imposed.”

Sultan Kamruddin Dharani v. The Union of India & Ors.9 decided by this Court on 19th
September, 2008, a question arose, as to whether in a bailable offence under Customs Act, while
granting bail, Court could impose condition to deposit Passport and not to travel abroad without
permission. This Court observed

“Thus, the position of the law is that a person who is alleged to have committed a bailable
offence has an unfettered and absolute right to be enlarged on bail and the Court or the Police
Officer concerned, as the case may be, has no discretion to grant or refuse bail. Subject to first
proviso to sub-section (1) of Section 436 of the Code of 1973, the Court may modulate the
condition of bail as regards the bail amount and the number of sureties. However, the Court cannot
impose a condition which is not a term as to the bail. The condition of requiring a person accused
of a bailable offence to surrender his passport to the court is not a term as to bail. If in such a case
a condition is imposed that bail is granted subject to condition of deposit of passport, such a
condition will defeat the absolute right of the accused under section 436(1) of the said Code to be
set at liberty.”

F. Cancellation of bail in bailable offences.

Section 436(2) grants the Court the authority to deny bail to an accused individual, even in
bailable cases, if they fail to comply with bail bond conditions. This refusal does not hinder the
Court’s ability to forfeit the bond and penalize the surety as per section 446. Additionally, even in
bailable cases, the Court retains the power to withhold bail. If an accused person is ordered into
custody by the High Court, they cannot seek bail under this section, but the High Court may later
grant bail. A bail decision, whether granting or denying, is interim and subject to modification,

9
CRIMINAL WRIT PETITION NO.865 OF 2007 Available at www.indiankanoon.org
rescission, or cancellation at any stage. It does not conclude the proceedings or address any
substantive issues in the case, thus not being a final order. 10

Regarding the cancellation of bail in bailable offences, while there are no explicit provisions
in the Code for this, if an accused person breaches bail conditions or engages in misconduct, the
High Court can exercise inherent power to arrest and detain them to uphold the integrity of the trial
process. This authority is invoked sparingly to prevent miscarriages of justice. The distinction
between bailable and non-bailable offences does not affect the court’s discretion in such matters.
Therefore, if an accused person forfeits their right to bail due to misconduct, the High Court can
revoke bail in the interests of justice.

In the event of non-compliance with bail conditions leading to custody, an accused individual
cannot claim bail solely on the basis of being involved in bailable offences. Section 436(2) allows
the court discretion to refuse bail if bail conditions regarding time and place of attendance are
violated. This discretion mirrors that exercised in non-bailable cases.11

In Mahendra C. Vakharia v. State of Maharashtra, the Bombay High Court ruled that bail for
a bailable offence cannot be revoked unless there is a breach of bail conditions. This means that
bail cannot be cancelled unless conditions of the bail bond are violated.

3.2 SECTION 436A : MAXIMUM PERIOD FOR WHICH AN UNDER TRIAL

PRISONER CAN BE DETAINED.

Section 436A of the Code of Criminal Procedure, inserted by the Cr.P.C. (Amendment) Act,
2005, addresses the issue of under-trial prisoners being detained beyond the maximum period of
imprisonment for the alleged offence. It stipulates that if an under-trial prisoner (excluding those
accused of offences punishable by death) has been detained for half of the maximum period of
imprisonment specified for the offence, they shall be released on their personal bond, with or
without sureties. The court, after hearing the Public Prosecutor and providing written reasons, may

10
Rati Pal Bhanji Mithani v. Asst. Collector of customs AIR 1967 SC
11
Ramesh Bhai Amaratbhai v. State 1 983(1) GLR 531
extend the detention beyond half of the specified period or release the individual on bail.
Additionally, no under-trial prisoner can be detained for a period exceeding the maximum
imprisonment provided for the offence. This provision aims to ensure fairness in the treatment of
under-trial prisoners and prevent unjustified prolonged detention without trial.

3.3 BAIL IN NON BAILABLE OFFENCES.

Bail is categorized into bailable and non-bailable offences based on the severity of the charge
and potential punishment, aiming to deter accused individuals from tampering with evidence or
fleeing to avoid punishment. In cases of non-bailable offences, where the gravity of the offence
warrants it, courts have the discretion to grant bail. The distinction between bailable and
nonbailable offences is outlined in Section 2(a) of the Code of Criminal Procedure 1974, where a
bailable offence is defined as one listed as such in the first schedule or by other prevailing laws,
while a non-bailable offence encompasses all other offences. Generally, offences punishable by
imprisonment of three years or more are considered serious and fall under the non-bailable
category.

A. Statutory Provision

Section 437 outlines the circumstances under which bail may be granted in cases of
nonbailable offences:12

1. When a person accused or suspected of a non-bailable offence is arrested without warrant

by a police officer or brought before a lower court, bail may be granted, except in cases
involving offences punishable by death or life imprisonment. Additionally, bail may be
denied if the accused has a history of serious offences, unless certain conditions are met,

12
Code of Criminal Procedure 1973
 such as being under sixteen, female, or in poor health. The court may also grant bail in
exceptional cases.
2. If during the investigation or trial, it becomes evident that there are insufficient grounds to
believe the accused committed a non-bailable offence, but further inquiry is warranted, bail
may be granted with or without conditions.
3. When a person accused of an offence punishable by at least seven years of imprisonment
or certain specified offences is granted bail, conditions may be imposed by the court to
ensure compliance with legal proceedings and prevent interference with witnesses or
evidence.
4. The officer or court granting bail must provide written reasons for their decision.

5. The court may re-arrest and detain a person previously granted bail if deemed necessary.

6. If a trial for a non-bailable offence is not concluded within sixty days from the start of
evidence collection, the accused may be released on bail unless the magistrate decides
otherwise.
7. If, before judgment is delivered, the court finds reasonable grounds to believe the accused
is not guilty, they may be released on a bond without sureties.

These provisions aim to balance the rights of the accused with the interests of justice and
public safety.

B. Scope.

In cases of bailable offences, bail is a matter of right, whereas in non-bailable offences, it is

at the discretion of the court or police officer. This section empowers authorities to grant bail in
non-bailable cases unless there are reasonable grounds to believe the accused is guilty of a capital
offence or life imprisonment. However, individuals under sixteen, women, or those who are sick
or infirm may be granted bail even for serious offences. If it becomes evident during trial that the
accused is not guilty, bail may be granted immediately, and the court can review the decision. The
power of magistrates under this section differs from that of higher courts under Section 439. 13 The
general principle is to grant bail unless there are circumstances suggesting a risk of flight,
obstruction of justice, repeat offences, or witness intimidation. While bail is the norm, it must serve
the interests of justice. Bail cannot be granted based on compromise assurances, nor can it be
cancelled for reasons not specified in the law. Once bail is granted, courts cannot cancel it
arbitrarily but only for reasons outlined in the law.

C. Discretionary Power in Cases of Non-Bailable Offence

In the realm of bail, a distinction exists between bailable and non-bailable offences: for
bailable offences, bail is a right, while for non-bailable offences, it’s a matter of discretion. The
authority to grant bail lies with various entities as stipulated in the Criminal Procedure Code
(Cr.P.C.), including police officers, magistrates, sessions courts, and high courts. The Supreme
Court typically doesn’t handle bail matters directly but may review bail orders passed by high
courts under exceptional circumstances using its powers under Article 136 of the Indian
Constitution.

Police officers can grant bail for certain non-bailable offences within 24 hours of arrest,
excluding cases involving capital punishment or life imprisonment. Magistrates have broader
powers, allowing them to grant bail for all bailable offences and most non-bailable offences upon
the accused’s appearance before them. However, in practice, police officers rarely exercise this
authority for non-bailable offences.

Sessions courts and high courts possess extensive discretion in granting bail for any offence,
subject to specific legal constraints. The guiding principle is to ensure bail unless circumstances
suggest a risk of flight, obstruction of justice, or other disruptive behavior by the accused.

Discretion must be exercised judiciously, guided by established legal principles and considerations
relevant to each case.

13
Chandra Prakash v. Mohan Lal, 1984(2) Crimes325 (All)
 The term ‘may’ in Section 437(1) indicates discretionary power, which is regulated by
explicit provisions in the Cr.P.C. and judicial precedents. The extent of discretion varies depending
on factors such as the gravity of the offence. Judicial officers have wider discretion compared to
police officers. Regardless of the scope of discretion, it must be exercised lawfully, guided by
established rules and principles. Factors considered in bail decisions for non-bailable offences
include the nature and severity of the offence, evidence, peculiar circumstances of the accused,
potential influence on witnesses, and public interest. These factors may evolve over time to address
new challenges.

Notably, bail cannot be refused as a form of punishment, and the presumption of innocence
must be upheld. While pre-trial detention is not inherently unjust, it should be balanced against the
presumption of innocence and the need for a fair trial. Section 437 mandates that reasons for
granting bail be recorded in writing to facilitate review by higher courts. However, detailed
discussions on the merits of the case should be avoided to prevent prejudicing the accused.

In summary, bail decisions in non-bailable offences must adhere to established legal

principles, ensuring fairness and justice while balancing the interests of all parties involved.

D. Bail in Case of An Offence Punishable with Death or Imprisonment for Life.

Bail for offences punishable with death or life imprisonment is restricted under Section
437(1)(i) of the Cr.P.C. This provision limits the discretion to grant bail, except in cases involving
children, women, or individuals with health issues. The rationale behind this restriction is that more
serious offences increase the risk of the accused fleeing or obstructing justice.

Determining whether there are reasonable grounds to believe the accused is guilty of such a
serious offence involves examining the evidence likely to be presented at trial or already collected
by the prosecution. The phrase “reasonable grounds for believing” differs from “evidence,”
indicating that the court must assess whether there is a genuine case against the accused and
whether the prosecution can provide prima facie evidence. The court is not expected to establish
guilt beyond a reasonable doubt at this stage. 14

If there is prima facie evidence of an offence punishable with death or life imprisonment,
the magistrate cannot grant bail, even if the accused may have a potential defense. The validity of
the defense can only be assessed during the trial and is not relevant to the bail decision under
Section 437.

It’s been interpreted that the phrase “an offence punishable with death or imprisonment for
life” should be read disjunctively, meaning either death or life imprisonment. Therefore, even
offences with a maximum sentence of life imprisonment fall under the restriction of Section
437(1)(i). Courts have differed in their interpretations, with some holding that the prohibition
applies only when the sentence is death or life imprisonment, while others apply it to offences
punishable with life imprisonment alone.

Despite attempts to liberalize bail laws, there remains uncertainty regarding the
interpretation of Section 437(1)(i) and its application to offences punishable solely with life
imprisonment.

E. Bail to Women, Sick or Infirm Person and Child.15

The first proviso to Section 437(1) of the Cr.P.C. grants the power exclusively to the court,
not to any police officer, to release certain individuals on bail, such as those under 16 years old,
women, or individuals who are sick or infirm. This proviso overrides the restriction on bail in cases
of serious offences punishable by death or life imprisonment. 16 It allows magistrates to grant bail
to such individuals even if there are reasonable grounds to believe they are guilty of such offences
or have a prior conviction.

14
Prahlad singh Bhati v. NCT Delhi AIR 2001 SC
15
Cr LJ 365
16
Chaki v. State AIR 1957 Raj 10
 The Interpretation of the term “may” in the first proviso has been subject to debate. While
some argue it should be read as mandatory, requiring the magistrate to grant bail, others contend it
grants discretion to the magistrate. The Allahabad High Court has held that “may” should be
interpreted as “shall” or “must,” making bail mandatory. However, a Division Bench of the same
court has disagreed, stating that the magistrate retains discretion in bail decisions. 17

In cases involving serious offences like bride burning, where the accused, even if a woman,
actively participated in the offence, bail may be denied despite the first proviso. The magistrate
must consider various factors, including the seriousness of the offence, the likelihood of witness
tampering, and the severity of the accused’s illness or infirmity, before granting bail.

Courts have specified that not all sicknesses or infirmities entitle a person to bail. The illness
must pose a risk to the accused’s life, and the availability of proper medical treatment in jail may
influence the bail decision. However, serious ailments like heart trouble or the need to care for an
ill family member can be grounds for bail.

In cases where the accused claims to be a juvenile, the court may order an inquiry to determine
their age. Conflicting evidence, such as school records, may be insufficient, and medical
examinations, including radiological assessments, may be necessary to determine the accused’s
true age. The court’s decision on bail may depend on accurate age determination to establish
juvenile status.

F. imposition of condition while granting bail in certain offences.

In cases falling under Section 437, the court often deems it necessary to impose certain
conditions even when granting bail. Subsection (3) of Section 437 outlines the conditions that must
be imposed when releasing a person accused of serious offences punishable by imprisonment of
seven years or more, offences under specific chapters of the Indian Penal Code, or related offences
like abetment, conspiracy, or attempt. These conditions are aimed at ensuring the accused’s

17
Khagendranath Bayan v. State of Assam 1982 Cr LJ 2109
appearance, preventing repeat offences, avoiding tampering with evidence, or serving the interests
of justice. The power to impose conditions lies solely with the court, not with any police officer.

Conditions imposed must be reasonable and directly related to preventing the accused from
fleeing, repeating the offence, or serving the interests of justice. 18 Courts must ensure that
conditions
do not infringe upon the accused’s fundamental rights guaranteed under the Constitution.

Conditions that compel the accused to incriminate themselves or go against their rights are invalid.
Conditions should strike a balance between respecting the accused’s personal liberty and enabling
fair investigation.

Conditions like requiring the accused to accompany police for recovery of stolen goods may
violate the accused’s right against self-incrimination and would be deemed invalid. Similarly,
imposing conditions based on the possession of certain assets, such as land, may be considered
excessive and unconstitutional.

In cases where bail conditions are deemed excessive or onerous, courts may modify or set
them aside to ensure fairness and proportionality. The Supreme Court has intervened to reduce bail
amounts or adjust conditions that effectively deny bail to the accused.

F. PROVISIONS WHERE RELEASE ON BAIL IS MANDATORY.

i. Investigation not completed within the prescribed time

Under Section 167(2) of the Code of Criminal Procedure, individuals detained during
investigation become eligible for bail if the investigation into offences punishable by death, life
imprisonment, or imprisonment for at least ten years exceeds ninety days. For other offences, bail
eligibility arises if the investigation surpasses sixty days. If the police fail to complete the
investigation within these periods, the officer-in-charge must present the accused before a

18
Ananth Kumar v. State of A.P 1977 CrLJ 1797 (AP)
magistrate within twenty-four hours of arrest. The magistrate then determines further detention or
bail. The ninety or sixty-day period begins from the date of the accused’s first presentation before
the magistrate, excluding the initial twenty-four hours spent in police custody after arrest. 19 When
remanding the accused, the magistrate considers evidence collected by the investigating officer
and the possibility of obtaining further evidence. Remand in police custody cannot exceed fifteen
days in total. If extended detention is necessary, the magistrate authorizes alternative detention,
ensuring the total detention does not exceed ninety or sixty days, depending on the offence. Upon
expiration of these periods, the accused is released on bail if they furnish it. This provision applies
regardless of the offence’s bailability under Chapter XXXIII of the Code.

ii. Trial not concluded within sixty days after commencement

Section 437(6) mandates bail if the trial of a non-bailable offence is not concluded within
sixty days from the first evidence-taking date, provided the accused remained in custody
throughout. The magistrate may refuse bail, citing reasons in writing. This provision aims to
prevent prolonged detention without trial, promoting both speedy trials and justice. The refusal of
bail must be justified, considering factors beyond trial delays, such as the accused’s criminal
history. The provision applies to magisterial trials and does not affect sessions trials. However,
courts may adopt its principles to grant bail in sessions cases where delays occur without the
accused’s fault, respecting constitutional rights and promoting fair trials. The High Court clarified
that the magistrate’s refusal of bail under this provision is not limited to trial-delay-related reasons
but extends to legally justifiable grounds. Such grounds may include the accused’s nationality, the
nature of the offence, and the likelihood of absconding. The sixty-day period starts from the first
evidence-taking date after the accused is charge-sheeted, excluding pre-charge evidence recording.
Delays in investigations and trials unjustly deprive individuals of personal liberty and may indicate
insufficient evidence of guilt. Therefore, granting bail after trial delays upholds fairness and justice.

19
Natahar Parida v. State of Orissa 1975 Cr.LJ 1212(SC)
iii. Bail in Cases where No Reasonable Grounds for Non-Bailable Offence

Section 437(2) of the Code of Criminal Procedure states that if, during investigation, inquiry,
or trial, it becomes apparent to the police officer or court that there are no reasonable grounds to
believe the accused has committed a non-bailable offence, but further inquiry is warranted, the
accused shall be released on bail. However, according to subsection (4) of the same section, the
officer or court must record the reasons for granting bail. This provision grants the magistrate the
authority to grant bail under certain circumstances during investigation, inquiry, or trial, provided
the accused is still in custody and has not been brought before the magistrate. Once the accused
appears before the magistrate under Section 167, further detention or bail is governed by that
section. However, the magistrate may still exercise the power under Section 437(2) if it becomes
evident during investigation, inquiry, or trial that while the accused may not have committed a
non-bailable offence, further inquiry into a bailable offence is necessary. The accused can only be
granted bail under this provision if they can convince the court that there are no reasonable grounds
to believe they committed a non-bailable offence.20

iv. Accused Released on Bail after Conclusion of Trial

Subsection (7) of Section 437 provides for the release on bail of an under-trial prisoner. If a
case tried by a magistrate is not concluded within 60 days from the first date set for evidence, the
prisoner must be released on bail unless the magistrate records reasons for refusal. However, if the
trial concludes and the judgment is pending, the accused must be released on personal
recognizance, without sureties, only for the purpose of appearing to hear the judgment if the court
believes there are reasonable grounds to believe the accused is not guilty. This provision ensures
that if, after the prosecution presents all evidence, the court finds insufficient grounds to believe

20
Bohre singh v. State, 1956 Cr.LJ 1275
the accused is guilty, they must be released on a personal bond solely for appearing to hear the
judgment.

3.4 ANTICIPATORY BAIL(SECTION 438)

Section 438 of the Code of Criminal Procedure outlines the conditions under which an
individual anticipating arrest for a non-bailable offence may seek bail. Anticipatory bail, distinct
from regular bail, is effective at the moment of arrest and is defined as bail granted in anticipation
of arrest. Although not explicitly defined in the Cr.P.C., the Supreme Court in Balchand Jain v.
State of M.P.21 referred to it as such. The purpose of anticipatory bail is to uphold personal liberty
and the presumption of innocence until proven guilty, as highlighted in Siddharam Satlingappa
Mhetre v. State of Maharashtra. 22 The Law Commission recommended the provision for
anticipatory bail, leaving its conditions to the discretion of the court. Anticipatory bail should be
granted sparingly and only when the court is convinced that the individual would not misuse their
liberty.

A. Statutory Provision:

Section 438 allows individuals anticipating arrest for a non-bailable offence to apply to the
High Court or Court of Session for bail. The court may consider various factors, including the
nature of the accusation, the applicant’s antecedents, and the possibility of fleeing from justice,
before issuing an interim order for anticipatory bail. Conditions may be imposed by the court, such
as making oneself available for interrogation or refraining from influencing witnesses. If the person
is subsequently arrested, they may be released on bail if willing to provide it, or a bailable warrant
may be issued.

21
AIR 1977 SC 2447
22
AIR 2011 SC 312
B. Scope:

Anticipatory bail is granted by the High Court or Court of Session solely for non-bailable
offences. It is not to be granted arbitrarily but based on specific conditions outlined in the section.
The court must provide reasons for granting anticipatory bail, and its exercise should be restricted
to exceptional cases where irreparable harm may occur without bail. The phrase “if it deems fit”
indicates that reasons must be provided for making the order, ensuring transparency and
accountability in the process.

C. Who Can Seek Anticipatory Bail

An individual who reasonably believes that they might face arrest on fabricated charges, due
to personal enmity, or fears the construction of false allegations against them has the right to
approach the Court of Session or the High Court under Section 438 of the Code of Criminal
Procedure for anticipatory bail. However, individuals declared as absconders or proclaimed
offenders under Section 82 of the Criminal Procedure Code and who have not cooperated with the
investigation should not be granted anticipatory bail. The Supreme Court, in the case of State of
M.P vs. Pradeep Sharma, emphasized that individuals evading arrest and declared proclaimed
offenders are not entitled to anticipatory bail.

D. Conditions for Anticipatory Bail

The High Court or the Court of Session may impose conditions based on the circumstances
of the case, such as:

a. Making oneself available for interrogation by the investigating officer.

b. Refraining from influencing witnesses directly or indirectly.

c. Not leaving India without prior permission from the court.

E. Relevant Considerations for Granting Anticipatory Bail.

Anticipatory bail can only be granted for non-bailable offences, with no rigid guidelines
provided for its grant or refusal. The court must consider various factors, including:

- The nature and gravity of the accusation and the role of the accused.

- The accused’s antecedents and previous convictions.

- The possibility of the accused fleeing from justice or repeating offences.

- The motive behind the accusations, whether to injure or humiliate the applicant.

- The potential impact of granting anticipatory bail on the investigation and the interests of justice.

- The likelihood of witness tampering or threats to the complainant.

- The gravity of the offence and the need for custodial interrogation.

- The possibility of frivolous prosecution.

- The context of the events leading to the charges and the public or state interests involved.

The court must exercise caution and circumspection in granting anticipatory bail, considering its
potential interference with the investigation. Anticipatory bail should only be granted in
exceptional cases, especially when influential individuals attempt to misuse the legal system to
discredit their rivals.

F. Limitations of Anticipatory Bail.

 Issuing a blanket order of anticipatory bail, which covers any or every potential unlawful
activity without concrete information, should be avoided as it could severely hinder police
functions. The Supreme Court has emphasized that under section 438 of the CrPC, a direction
should not be given for the applicant to be released on bail “whenever arrested for whichever
offence whatsoever.” Such a blanket order would be inappropriate as anticipatory bail is meant to
secure an individual’s liberty, not provide immunity against any accusation, likely or unlikely. It’s
crucial to note that anticipatory bail cannot be granted for an accusation not yet leveled against the
petitioner or for an offence not yet committed.

Furthermore, courts have highlighted the need for specific circumstances and credible
evidence before issuing anticipatory bail. A Division Bench of the Punjab and Haryana High Court,
citing Adri Dharan Das v. State of W.B.23 ruled that blanket anticipatory bail orders should not be
passed without reference to special circumstances and acceptable materials. Anticipatory bail
orders should be tailored to the individual case and not serve as a general safeguard against all
potential allegations.

G. Duration of Anticipatory Bail

The law regarding the duration of anticipatory bail remains uncertain and varied. While the
Parliament hasn’t specified any timeframe for anticipatory bail, courts have grappled with
determining its operational period. Some courts follow the stance laid down in Gurbaksh Singh
Sibbia’s case,24 allowing anticipatory bail to remain active for a short period after the filing of an
FIR. However, there’s no absolute rule for limiting the duration of anticipatory bail, and each case
must be considered on its merits.

Before the Supreme Court’s decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra,
there was no widespread practice of limiting the duration of anticipatory bail, except in certain

23
Adri Dharan Das v. State of W.B. AIR 2005 SC 1632
24
Gurubaksh Singh v. State of Punjab AIR 2005 SC 1057
instances such as the Gujarat High Court’s ruling in Somabhai Chaturbhai Patel v. State. However,
the Supreme Court’s precedent has consistently emphasized the temporary nature of anticipatory
bail, which should expire after a brief period or until the regular court takes over the matter.

In considering the duration of anticipatory bail, courts must balance personal freedom with
the need for a thorough investigation. While anticipatory bail can continue until the end of the trial,
courts have discretionary powers to limit its tenure based on the circumstances of each case. The
recent judgment in Sushila Agarwal v. State of Delhi reaffirms that there’s no fixed time limit for
anticipatory bail and its duration can extend until the trial concludes, with courts having the
discretion to impose restrictions if necessary.

H. Anticipatory Bail in Uttar Pradesh.

In 1976, the provision for anticipatory bail under section 438 was removed from the Code
of Criminal Procedure (Uttar Pradesh Amendment Act), prompting anticipatory bail seekers to turn
to either the Supreme Court or the High Court. This led to a consistent demand for the provision’s
revival, with several writ petitions filed on the matter. Recognizing this need, the State Law
Commission, in its third report in 2009, recommended the restoration of the provision.

Finally, after a gap of 43 years, the provision for anticipatory bail has been reinstated in Uttar
Pradesh. This move allows accused individuals to seek advance bail in non-bailable offences. The
provision was initially revoked during the Emergency in 1976 when Section 438 (anticipatory bail)
was omitted from the Code of Criminal Procedure 1973 through the Code of Criminal Procedure
(Uttar Pradesh Amendment) Bill, 1976.

Subsequently, the state assembly passed ‘The Code of Criminal Procedure (Uttar Pradesh
Amendment) Bill, 2018’ on August 31, 2018, aiming to restore anticipatory bail in the state. The
amendment bill received approval from President Ram Nath Kovind on June 1, 2019.
3.5 PROVISION CONFERRING SPECIAL POWER ON HIGH COURT OR
SESSIONS COURT REGARDING BAIL

Section 439 of the Code of Criminal Procedure 1973 grants significant discretion to both the
High Court and the Court of Session regarding bail. It allows them to release accused individuals
on bail and modify conditions imposed by Magistrates. However, before granting bail in certain
cases, notice must be given to the Public Prosecutor, ensuring transparency.

This provision enables courts to exercise discretion in granting bail, even before an arrest,
and released individuals remain under the classification of “arrested” or “accused.” However, bail
may be denied if there’s a risk of the offense being repeated or if it’s in the interest of society. Both
High Courts and Sessions Courts have concurrent jurisdiction, and individuals can approach either
directly.

The Supreme Court has outlined common considerations for bail decisions, including the
nature of the offense, the accused’s status, and the likelihood of fleeing from justice. While
Magistrates have limited discretion under Section 437, the High Court and the Court of Session
have broader discretion under Section 439.

Bail applications can be made directly to the High Court, without needing to go through the
Sessions Court first. Additionally, bail can be canceled by either the High Court or the Sessions
Court under specific circumstances established by judicial precedents. In considering bail
applications, courts take into account various factors such as the nature of the charge, the strength
of the evidence, and the likelihood of the accused absconding or tampering with evidence. Each
case is unique, and bail decisions should be based on the specific circumstances involved.

Overall, Section 439 emphasizes the importance of ensuring a fair trial and balancing the interests
of justice while exercising discretion in granting or canceling bail.
3.6 PROVISION OF BAIL UNDER SECTION 395 WHERE A REFERENCE
HAS BEEN MADE TO HIGH COURT

The provision outlined in Section 395 of the Criminal Procedure Code (CrPC) is crucial for
cases where the validity of an Act, Ordinance, or Regulation is questioned, and the determination
of its validity is necessary for the case’s disposal. If a lower court, such as a Court of Session or a
Magistrate’s Court, believes that the Act or provision in question is invalid or inoperative but hasn’t
been declared so by a higher court like the High Court or Supreme Court, it must state its opinion
and reasons and refer the matter to the High Court for decision.

Sub-section (3) of Section 395 emphasizes that when such a reference is made, the court has
discretion regarding the accused’s custody. It can either commit the accused to jail or release them
on bail until the High Court makes its decision. This discretion must be exercised judiciously,
considering established legal principles. Additionally, the court can impose conditions when
granting bail under this section.

It’s important to note that because the order of bail under Section 395(3) is considered an
interlocutory order—a temporary decision made during the course of litigation—it cannot be
challenged through revision. Revisional powers, as outlined in Section 397 of the CrPC, enable
the Sessions Judge or High Court to review the correctness, legality, or propriety of a lower court’s
finding, sentence, or order. However, these revisional powers cannot be invoked for interlocutory
orders.

Section 397 further clarifies that if a person has already made an application for revision either to
the High Court or Sessions Judge, no further application by the same person will be entertained.
This provision aims to prevent multiple applications for revision by the same individual, ensuring
procedural efficiency. When an accused seeks revision of a sentence or order of imprisonment,
which isn’t appealable, the Sessions Judge can review the case. Upon receiving the record, the
Sessions Judge may suspend the execution of the sentence and release the accused on bail pending
examination of the record. The use of the term ‘may’ in Section 397 indicates the discretionary
power of the Sessions Judge in deciding whether to grant bail while considering the circumstances
of the case.

In situations where bail is refused by a Magistrate, the aggrieved party can file a fresh bail
application before the Sessions Judge or High Court. In such cases, seeking revision against the
Magistrate’s decision isn’t necessary, as there are avenues for fresh bail applications before higher
courts. Additionally, if the Sessions Judge denies bail under Section 439 of the CrPC, the accused
can approach the High Court directly under the same section, eliminating the need for revision
against the Sessions Judge’s decision. This procedural framework ensures that individuals have
recourse to higher courts for bail if necessary, without the need for redundant revisions at each
stage of the process.25

3.7 PROVISION OF RELEASE OF APPELLANT ON BAIL UNDER

SECTION 389

Section 389(1) of the CrPC stipulates that during the pendency of an appeal by a convicted
individual, the Appellate Court, with reasons recorded in writing, may order the suspension of the
sentence or order under appeal. This includes the possibility of releasing the individual on bail or
their own bond if they are in confinement. However, these powers are exclusively vested in the
Appellate Court and cannot be exercised in the absence of an appeal. The trial court is limited to
suspending jail sentences, while the appellate court has broader discretion to suspend all or part of
the sentence, including fines.

Similar to Section 437(5), provisions are applied analogously to bail cases under this section
to prevent the abuse of the court process and ensure justice. Whether the offense is bailable or non-
bailable, the decision to grant bail to a convicted person rests entirely with the appellate court.
However, this discretion must be exercised judiciously, with the court obligated to provide reasons

25
Bhola v. State , 1974 Cr.LJ
for granting bail. Factors considered include whether there are substantial doubts about the
conviction and the likelihood of unreasonable delays in the appeal’s disposal.

Section 389 distinguishes between bail and suspension of sentence. In cases of convictions
under Section 302 of the IPC, such as murder, the Supreme Court, in cases like Vijay Kumar v.
Narendra and Ramji Prasad v. Rattan Kumar Jaiswal, has held that the benefit of suspending the
sentence is granted only exceptionally. Factors such as the gravity of the offense, nature of the
accusation, and manner of its commission are crucial in determining whether bail should be granted
to those convicted of serious offenses like murder.

Traditionally, both the Supreme Court and many High Courts have been reluctant to grant
bail to those sentenced to life imprisonment under Section 302 of the IPC. This practice stems from
the belief that individuals convicted of such serious offenses should not be released until their
conviction is overturned, assuming the appeal process is expedited to avoid prolonged
incarceration for potentially innocent individuals.

3.8 PROVISION OF BAIL UNDER SECTION 389(3)

Sub-section (3) of Section 389 outlines the procedure when a convicted individual expresses
their intention to appeal their conviction and sentence. If the convicted person is on bail and their
sentence does not exceed three years’ imprisonment or if the offense is bailable, the court that
convicted them must release them on bail for a period sufficient to allow them to file the appeal
and seek orders from the Appellate Court under sub-section (1) of Section 389. During this period
of bail, the sentence of imprisonment is considered suspended.

This provision ensures that individuals seeking to appeal their conviction and sentence are
not unduly detained while preparing their appeal. The sentencing court is obligated to grant bail in
these specific circumstances unless there are compelling reasons to deny it. To prevent arbitrary
refusals of bail, the court must record special reasons for refusing bail under this section,
emphasizing the exceptional nature of such refusals.

3.9 PROVISION OF BAIL UNDER SECTION 390.

Section 378 of the CrPC establishes that appeals against orders of acquittal can only be
lodged with the High Court. Such appeals are typically initiated by the State, but in certain
circumstances, the complainant may also file an appeal, particularly if the acquittal order pertains
to a complaint case. When an appeal against acquittal is lodged, Section 390 of the CrPC confers
authority upon the High Court to issue a warrant for the arrest of the accused and bring them before
itself or any subordinate court. Upon being brought before the court, the accused may either be
detained in prison pending the appeal’s disposal or released on bail.

In matters concerning bail under Section 390, the High Court wields complete discretion,
irrespective of whether the offense is bailable or non-bailable. This discretion must be exercised
judiciously. While the Orissa High Court has opined that accused persons should not be at liberty
during the discussion of their fate in cases involving capital charges, the Full Bench of the Punjab
High Court has taken a different stance, suggesting that accused respondents in state appeals
against acquittal on capital charges are generally eligible for bail during the appeal’s pendency,
unless compelling reasons exist for their detention.

Section 482 of the CrPC confers inherent powers upon the High Court to ensure justice and
prevent abuse of the court process. However, these powers cannot be invoked when specific
provisions for bail are already laid down in the CrPC. The Supreme Court has emphasized that if
a matter is explicitly addressed by the law, the court cannot circumvent statutory provisions by
invoking inherent powers. Nevertheless, in exceptional cases where the interests of justice demand
it, such inherent powers may be exercised. As for the Supreme Court’s jurisdiction in bail matters,
the CrPC does not provide for an appeal to the Supreme Court from bail orders passed by lower
courts. Most High Courts hold that even revision applications under the CrPC are not maintainable
against such orders, considering bail orders to be discretionary interlocutory orders. Therefore, the
High Court is typically considered the final authority in matters of bail. The only recourse against
an order passed by the High Court in the exercise of bail jurisdiction is to file a special leave
petition under Article 136 of the Constitution of India. Article 136 grants the Supreme Court
discretionary power to entertain appeals from judgments, decrees, determinations, sentences, or
orders passed by any court or tribunal in India. While the Supreme Court is generally hesitant to
interfere with bail orders, it may do so in cases where there is a clear indication of a miscarriage
of justice, as established in the case of Pokar Ram v. State of Rajasthan.

3.10 CANCELLATION OF BAIL

Cancellation of bail, governed by Sections 437(5) and 439(2) of the CrPC, aims to maintain
judicial integrity, ensure fair trials, and prevent accused individuals from tampering with evidence
or committing further crimes. Courts can direct arrest and custody if bail conditions are violated,
with discretion resting primarily with the court that granted bail. Supervening circumstances or
misuse of liberty can warrant bail cancellation, distinguishing it from bail rejection. 26 Only the
court can cancel bail, not law enforcement. Cancellation can occur based on case merits or misuse
of liberty, with superior courts handling the former and the granting court handling the latter.
Understanding these principles is crucial for proper application of bail cancellation.

A. Cancellation of bail in Bailable offence.

In bailable offenses, the High Court holds the inherent power to cancel bail granted by a
Magistrate if deemed necessary in the interest of justice. However, a Magistrate lacks authority to
cancel bail granted under Section 436 of the CrPC, except if the accused fails to comply with
specified bail conditions. The phrase "released on bail under this chapter" in Section 439(2)

26
Panchanan Mishra v. Digambar Mishra, AIR 2005 SC 1299.
includes bail granted under Section 436, empowering the High Court and Court of Session to
cancel such bail if sufficient grounds are shown.

B. Cancellation of Bail in Non-Bailable Offence.

In non-bailable offenses, a court other than the High Court or Court of Session, including a
Magistrate, can direct the arrest and custody of a person released on bail under Section 437(1) or
(2). This allows the Magistrate to cancel bail they granted and recommit the accused to custody
under various circumstances, such as if the accused commits the same offense, impedes the
investigation, tampers with evidence, absconds, or engages in violence.

C. Cancellation of Bail by High Court or Session Court.

Under Section 439(2) of the CrPC, the High Court or Court of Session can cancel bail granted
under Chapter XXXIII, including sections 436, 437, 438, and 439 itself. If bail is granted by the
High Court under Section 439, the Sessions Court cannot cancel it without specific empowerment.
The High Court may order custody of a person released on bail by any court, but a Court of Session
can only cancel bail if new circumstances arise during the trial. Regarding anticipatory bail under
Section 438, courts have held that the power to grant it implies the power to cancel or recall it upon
appropriate consideration.

D. Cancellation should not be in Mechanical Manner.

In Dolat Ram v. State of Haryana, 27 the Supreme Court stressed that bail cancellation shouldn't be
mechanical but based on careful consideration of new circumstances affecting the fairness of trial.
Grounds for cancellation include repeated offenses, evidence tampering, witness influence, or
evasion of justice. Courts demand prosecution to prove accused abuse of liberty or interference

27
(1995) 1 SCC 349
with justice. Cancelling bail aims to ensure fair trials, especially in serious crimes, avoiding
prejudice to prosecution.

3.11 BAIL UNDER SPECIAL LAW.

Accused individuals are often apprehended not only for offenses outlined in the Indian Penal
Code but also under various other statutes. If the offense falls under these statutes and is
cognizable, the police officer in charge has the authority to arrest the accused. In cases where the
offense is non-bailable, considerations regarding the custody of the accused, their production
before the appropriate Magistrate as per the Code of Criminal Procedure, and the possibility of
bail arise. The applicability of bail provisions, as outlined in Chapter XXXIII of the Code of
Criminal Procedure, depends on a comprehensive examination of the relevant legal provisions.
Whether bail should be granted, either before or after the charge sheet is filed, hinges on several
factors, including the specifics of the case, any unique restrictions specified in the relevant statutes,
and the criteria delineated in section 437(1) of the Code of Criminal Procedure.

A. Bail under Narcotics drugs and Psychotropic Substances Act, 1985

Bail provisions under the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985
are stringent due to the grave nature of the offenses and the significant societal impact they pose.
Unlike general bail principles, bail decisions under the NDPS Act are guided by Section 37 of the
Act, 28 which outlines restrictions on bail for offenses punishable with five years or more of
imprisonment. The Act emphasizes that bail is the exception rather than the rule, especially in
serious NDPS cases where the accused may pose a threat to society by continuing drug trafficking
activities if released. Section 37 imposes conditions for bail, requiring the prosecution to oppose
the application and the court to be satisfied of the accused’s innocence and their unlikelihood to
commit further offenses while on bail. These provisions go beyond those of the Code of Criminal
Procedure, emphasizing the Act’s strict stance on bail. However, the Act also allows for extensions

28
Sami Ullah v. Superintendent Narcotic Central Bureau 2008(16) SCC 471
of pre-trial detention periods, subject to certain conditions and reporting requirements. Despite
these provisions, concerns have been raised about the potential violation of the accused person’s
rights under Article 21 of the Indian Constitution, particularly regarding the unpredictability and
inconsistency of bail decisions under special legislation like the NDPS Act. The Supreme Court
has emphasized the importance of expeditiously resolving such cases to uphold principles of
justice and liberty.

B. Bail in Terrorist Activity.

Bail provisions concerning terrorist activities carry unique considerations due to the
profound implications they have on national security and societal harmony. Acts like the Terrorist
and Disruptive Activities Act (TADA) of 1985 and the Prevention of Terrorism Act (POTA) of
2002 were enacted to address such threats. Under TADA, Section 20(7) explicitly prohibits
anticipatory bail, emphasizing the seriousness of the offenses. The jurisdiction of High Courts in
granting bail under TADA is curtailed, with designated courts exclusively handling such matters.
These special courts were established to tackle terrorism cases with a dedicated procedure.
Although the Prevention of Terrorism Act of 2002 replaced TADA, past judgments on bail under
TADA remain relevant for pending cases. The Supreme Court, in various rulings, has underscored
the exceptional nature of bail in terrorism cases. It has intervened when bail was granted on
irrelevant grounds or when designated courts failed to consider crucial factors before granting bail.
The court emphasized that bail decisions must be made diligently, considering all available
evidence. Additionally, under Section 20(4) of TADA, bail may be granted if investigations exceed
180 days, subject to certain conditions. The amended Unlawful Activities (Prevention) Act of 1967
extends provisions on bail, ensuring the rights of the accused while safeguarding national security
interests. Despite the gravity of terrorist acts, bail denial should not be automatic, nor should it
shift the burden of proof. It should serve as a measure to ensure justice, not as a tool for state
manipulation.

C. Provisions of Bail and U.P. Gangster and Anti-Social Activities (Prevention)

Act 1986
 In the case of Akhilesh Singh v State of U.P., the issue revolved around whether a bail
application under Section 439 of the Criminal Procedure Code (CrPC) is permissible when the
accused is charged not only under the Indian Penal Code but also under Section 3 of the U.P.
Gangsters and Anti-social Activities (Prevention) Act, 1986 (U.P. Act). The offenses under the U.P.
Act are tried by a Special Judge appointed under the Act. Initially, the bail application was filed
before the Special Judge and rejected. Subsequently, it was moved to the High Court. The argument
put forth was that since the High Court or any other court lacks jurisdiction to entertain a bail
application against a Special Judge’s order, Section 439 of the CrPC is inapplicable. However, the
Allahabad High Court refuted this argument, stating that the U.P. Act does not wholly exclude the
operation of the CrPC. Section 19 of the Act does impose restrictions on bail, particularly when
the Public Prosecutor opposes the application. However, this limitation applies even if the offense
under the Act is not explicitly mentioned in the FIR. The crucial question was whether Section 439
of the CrPC is restricted by Section 19 of the U.P. Act. The Allahabad High Court concluded that
the Gangster Act is not a comprehensive code and does not curtail the powers under Section 439
of the CrPC to handle bail applications. Even if Section 19 is viewed as limiting Section 439, the
court must examine the FIR to ascertain if the accused is charged under the said Act.

D. Economic offences and Bail

After 1992, several scandals emerged such as the 2G scam, Satyam Scandal, UTI Scam,
Fodder scam, and Harshad Mehta, all involving allegations of economic offenses leading to
financial losses. In 2019, a total of 165,782 cases were registered for economic offenses, marking
a 6.1% increase from 2018. Among these, forgery, cheating, and fraud (FCF) accounted for the
majority of cases, followed by criminal breach of trust and counterfeiting. 29

In the case of Champakbhai Amirbhai Vasava v. State of Gujarat, the seriousness of

economic offenses was emphasized, leading to bail rejection for accused individuals. Another
instance involved a bail application for an accused charged with smuggling silver worth crores,

29
Akhilesh Singh v. State of U.P 1988 Cr.LJ 620
where bail was denied due to insufficient evidence and the gravity of the offense against the
nation’s economy.

The Supreme Court, acknowledging the distinct nature of economic offenses, imposed
stringent conditions while granting bail. For example, in Suresh Chandra Ramanlal v. State of
Gujarat, bail was granted on medical grounds with the condition of depositing a substantial sum
with the bank. Similarly, in Vijay Kumar v. Customs, habitual offenders were denied bail due to
the likelihood of continuing criminal activities.

In Anil Mahajan v. Commr. Of Customs, the Delhi High Court stressed that bail decisions
should consider public interest without categorizing offenses, including economic offenses, as a
separate class. The increase in white-collar crimes in recent years has undermined public
confidence in the democratic system, necessitating stricter bail terms to address these challenges.

CONCLUSION.

India’s bail laws aim to balance individual liberties with public safety and
judicial integrity. Governed by the Code of Criminal Procedure (CrPC), bail
provisions consider factors like offense severity and flight risk. Special laws impose
specific restrictions, and courts exercise discretion considering evidence, criminal
history, and potential tampering. While bail is a right, it's not automatic and may
have conditions. Recent trends show stricter bail conditions for economic and
terrorism-related offenses. Overall, India’s bail framework reflects a nuanced
approach to justice, aiming for equilibrium between individual rights and societal
welfare.