Bail is the rule and jail an exception: Basics Explained

Read: Bail is the rule and jail an exception: How the right to bail has been eroded in the name of ‘public safety’ | The Financial Express

The article talks about how denying bail to undertrials compromising the concept of ‘Rule of Law’ when it comes to the criminal justice system and under trials in prisons.

The article contextualized its argument in the speech of Chief Justice of India D Y Chandrachud who While speaking at a function in November 2022, opined that High Courts are flooded with bail applications as the district judges are reluctant to grant bail due to fear of being targeted. Not because of their inability, but because there is a sense of fear that somebody will target them if bail is granted by them in a heinous matter.

Nearly 80 per cent of the prisoners in Indian jails are undertrials. A huge number of such undertrials are later found not to be guilty and eventually released. There are over 6.1 lakh prisoners in our country and around 1400 prisons. Most of these prisoners belong to the most vulnerable sections of our society. Such arbitrary denial, guaranteed under Article 21, of personal liberty is directly in contradiction to the principles of natural justice and due process of law.

The Doctrine of Due Process of law prohibits the state from taking actions that shall deprive an individual from their rights to safety, liberty or life.

Procedure established by law says that a law that has been lawfully enacted is valid, even if it violates justice and equitable ideals.

The article gave few suggestions in the end:

Legal aid societies at the national, state, and district levels should come up with suggestions and solutions as to how the key issues can be addressed.

Petty issues of civil nature or originating from family or male-female relationships should be evaluated for resolution through alternative methods, including Lok Adalat.

The digitalisation and e-courts project is expected to provide great impetus to the speedy justice delivery con The police machinery must be upgraded not only with the latest technology but also equipped with more qualified professionals in key roles along with proper trainings.


Bail, in law, means release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The concept of bail is a necessary implication of Article 21 enshrined in the Constitution of India.  Chapter-XXXIII (Section 436 to 450) of the Criminal Procedure Code deals with various provisions as to bail.

Bail for Bailable offenses:

According to section 436 of CrPC, If the offense alleged is bailable, then, the accused is entitled to Bail as a matter of right and not as a favor. Bailable offenses are presumably less heinous therefore the sentence for the same is less severe and the accused can claim release on bail as a matter of their right.

Section 436A deals with the ‘Maximum period for which an undertrial prisoner can be detained. In this case, when the accused, during the investigation, inquiry or trial has already undergone detention for more than half of the term of conviction. He must be granted bail unless the
offense doesn’t amount to the punishment of death. It is also provided that in no case the under-trial be detained beyond the maximum period of
imprisonment for which he can be convicted for the alleged offense.

Section 437, Criminal Procedure Code, deals with the powers of the trial court and of the Magistrate to whom the offender is produced by the police or the accused surrenders or appears, to grant or refuse bail to a person accused of, or suspected of the commission of any non-bailable offense.

Section 438 of Cr.P.C. deals with anticipatory bail which is exclusively
vested with the Court of Session and High Court.

When any person has a reason to believe that there is a chance to get him arrested on false or trump-up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under Section 438 of the code of Criminal Procedure for grant of bail.

Mandatory bail

Section 167(2) of Cr.P.C. empowers judicial magistrates to detain the accused in police/judicial custody and release him on bail on expiry of the statutory period of 60 or 90 days of a total period of custody.

Legal provisions pertaining to the cancellation of bail are mainly contained in S.437 (5) and 439(2) Cr.P.C.

Section 437(5) states that a Magistrate which has released a person on bail may if it considers it necessary so to do, direct that such person be re-arrested. Section 439(2) confers powers on the High Court and the Sessions Court to direct re-arrest of the accused who has been released on bail by any court.


Leave a Comment


Welcome! Login in to your account

Remember me Lost your password?

Lost Password