Friday, June 14, 2024
    Blog Bail is Rule, Jail is Exception                  

     Bail is Rule, Jail is Exception                  

    -Abhinav Pandey


    Bail is rule jail is exception’ is a judicial principle that was laid down by the Honourable Supreme Court in a landmark judgement of State of Rajasthan Vs Balchand alias Baliya in 1978. The legal principle, in this case, was laid down by Justice V. Krishna Iyer, who based it on fundamental Rights guaranteed by the Constitution of India with Article 21 being the most important one. Detention of an individual infringes his Right to Life and liberty as guaranteed under Article 21 of the Indian Constitution. The main purpose of detention is to ensure easy proceedings by availing the accused of the trials without any inconvenience. Thus, if it can be ensured that the accused will be available as and when required for the trial, then, detaining the person is not necessary. Therefore, it was held that the provisions of the Criminal Procedure Code 1973 regarding the arrest of an individual must be interpreted in a sense that unless indispensable, detention of a person must be avoided.

    What is bail?

    The term ‘Bail’ has been derived from a French Verb ‘Bailer’ which means ‘to give’ or ‘to deliver.’ Bail is granted keeping in mind the target behind arrest which is to make sure the presence of the accused before the court for the trial with none inconvenience. However, if the presence of the accused is often guaranteed without detaining the person, then it might be unjust to violate his Right to Liberty. Therefore, bail is a form of security deposited to seem before the court for release.

    Types of Bails

    In India, bails are regulated by the Criminal Procedure Code and can be broadly classified into four main types:

    Regular Bail

    Section 437 and Section 439 of the CrPC deal with regular bail. This type of bail is granted to a person who has been arrested and was in judicial custody or police custody.

    Anticipatory bail

    Anticipatory bail can be granted by a Sessions Court or High Court under Section 438 of CrPC. It is granted when someone apprehends arrested for some crime.

    Interim Bail

    Interim bail is granted before the hearing for a grant of Regular bail or Anticipatory bail for a Shorter span of time.

    Default Bail

    Is granted as per section 436A of the Code of Criminal Procedure when the accused is under trial and in Judicial Custody and has undergone half of the maximum punishment awardable for the offence.

    Conditions for Granting Bail

    • In Case of a Bailable offence, bail must be granted if –

    The trial has not been completed within a time span of 60 days.

    There is no reasonable ground to believe that the accused has committed a non-bailable offence.

    The investigation is not completed within the prescribed time.

    • In the Case of a Non-Bailable offence, it is at the discretion of the court to grant bail which is majorly decided on the basis of the Facts and Circumstances of the Case.

    Anticipatory bail

    Section 438 of the CrPC deals with Anticipatory bail, which states that when a person has reasons to believe that he might get arrested for a Non-Bailable offense, then he may apply to Session Court or the High Court for his release on bail during such arrest and the court may direct the same if it deems it to be fit.

    In a landmark judgement of Siddharam Satlingappa Mhetre v. the State of Maharashtra, the court highlighted the importance of the Right to life and liberty guaranteed under Article 21 of the Constitution of India. Section 438 of the CrPC must be read in the light of Article 21 where granting or refusing bail must reflect a perfect balance of sanctity of an individual’s liberty and the interest of society.

    The reasons for the incorporation of anticipatory bail is multifold:

    Right to liberty

    The right to liberty guaranteed under Article 21 of the Constitution of India is one of the major reasons for the incorporation of the provision of anticipatory bail. The court is of the point of view that since it is a fundamental right, it should not be infringed for frivolous reasons. Right to life and personal liberty is the most precious right given under the constitution and as the guardian of the constitution, in the Arnab Goswami Case Supreme Court Says valuable lines for the law of bail that even for one day, this precious right cannot be violated.But in this case also, there were so many inconsistencies in the order of bail whether it’s about the Lower Court ,High Court or Different Benches of the Supreme Court. Moreover, the bail orders in Chinmayanand Case, Kanhaiya Kumar Case. were so long whereas the Jurisprudence of bail says that a bail order should be precise and merits of the case must not be discussed in bail order as it hinders the trial stage later.


    A person is innocent until proven guilty beyond a reasonable doubt. This principle of criminal jurisprudence is another reason for the incorporation of the provision of anticipatory bail. However, for seeking anticipatory bail, a person has to fulfill certain conditions as per Section 438(2) of the CrPC.


    1. That the person will be available for interrogation as and when needed;

    2. That the person will not fly away to any other country without the court’s permission;

    3. That the person will not tamper with the evidence and will not try to induce, or threaten the witnesses or the persons aware of the facts of the case by any direct or indirect contact.


    1.Political rivalry is one of the major reasons behind the requirement of anticipatory bail. Influential people try to implicate their rivals in false cases in order to humiliate them or for other personal motives.

    2.Another major reason for granting anticipatory bail is the prevalence of arbitrary and heavy-handed arrest, which often leads to harassment and humiliation of individuals. This was also the underlying reason behind the enactment of Section 438 in the CrPC.


    Gurbaksh Singh Sibbia v. State of Punjab (1980)

    In this case, the Apex court held that Section 438 of the CrPC must be used very sparingly and in exceptional cases only. However, the discretion of the court to grant bail cannot be limited just because the offence is punishable with life imprisonment or the Death Penalty. Additionally, the court held that the bail should not be limited by time, however, the court can impose reasonable restrictions on the basis of the circumstances and the Facts of the Case.

    Sushila Aggarwal & Ors. vs State (NCT of Delhi) & Ors. (2020)

    In this landmark judgement, the court held that the protection under Section 438 of the CrPC cannot be invariably limited to a fixed time. However, depending on the Facts of the case, the courts may impose certain conditions and time limits while granting bail. Additionally, the court held that the protection provided by anticipatory bail does not end when the accused is summoned, or charges are framed. It can be continued until the trial ends. However, if the circumstances of the case require a fixed time limit or imposition of certain conditions, then, the court can impose the same.


    Parole is derived from the French word ‘Je Donne Ma Parole’ which means ‘I give my word’ Parole is the release of a Prisoner either Temporarily for a special occasion or completely before the sentence ends on account of his good behavior. It is a conditional release in which the prisoner promises to abide by the conditions along with observance of certain restrictions in order to get the privilege of returning back to society.

    Parole is not included Under Section 432 of the CrPC, which deals with suspension and remission of sentences. As per the judgement of the apex court in the case of Sunil Fulchand Shah v. Union of India, Parole does not amount to suspension of sentence, thus, leaving it out of the scope of Section 432 of the CrPC. It is dealt with under the Prison Act, of 1894 and Prison Act, of 1900.

    All convicts except for convicts who are foreigners, a threat to National Security, Committed a crime against the State, or convicted for rape or murder of a child, shall be eligible for Parole. The aforementioned convicts might get parole at the discretion of the authorities.



    Regular parole is Granted for a Maximum Period of 1 month, except in special circumstances, to the convicts who have served their 1 year of imprisonment.

    It is granted in situations like:

    Marriage of a family member

    Damages due to Natural Calamities

    Accident or serious illness

    Filing Special Leave Petition in the Supreme Court.


    Custody Parole is Granted in emergency conditions like a marriage of a family member, death of any family member, Accident serious illness, etc. It is granted for a maximum period of Fourteen days and the prisoner cannot file for custody parole or regular parole for the next 1 year after the time period of the Parole Expires.


    Unless there are some cogent reasons for custodial interrogation and sustained detention at a pre-trial stage, detaining an individual and encroaching on his right to liberty is considered to be punitive and against the principles of natural Justice. Further, the application of the Reformative theory to the principles of Punishment calls for a balance between two theories, namely Deterrent theory, and Punitive theory, to reform an Accused and to keep him away from hardened Criminals in Jail who are Deemed to be Universities of Crime. Furthermore, with a rise in Human Rights activism, the equilibrium between the liberty of an individual and the interest of society has become the main concern. So unless there are some cogent reasons such as chances of the accused fleeing from justice or the fear of him tampering with the evidence or inducing the witnesses, detention of the accused is against his Fundamental Right to Liberty which is totally uncalled for. Therefore, the courts ensure that a person is not detained unless the interest of Justice suffers if an arrest is not made.


    Nowadays, the prosecution agencies unnecessarily oppose the bail application of the accused on the ground that his presence in custody is necessary for making a search and recovery of documents in his presence. However, The Supreme Court in Harsh Sawhney v. Union Territory, Chandigarh, rejected the plea of the prosecution on this ground and directed that the appellant shall appear for interrogation by the police whenever reasonably required, subject to his right under Article 20(3) of the Constitution of India. Now it is the need of the time that the Judicial authorities Interpret the Bail laws in a very systematic and effective manner by which no Government. can infringe the Right of the Personal Liberty of any Individual.


    1.Siddharam Satlingappa Mhetre v. State of Maharashtra

    2.Gurbaksh Singh Sibbia v. State of Punjab (1980)

    3.Sushila Aggarwal & Ors. vs State (NCT of Delhi) & Ors. (2020)

    4.Sunil Fulchand Shah v. Union of India





    9.Oxford English dictionary

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