Denial of bail hearing is a breach of rights: Supreme Court

Asserting that denial of a bail hearing is a breach of an accused person’s rights, the Supreme Court has, in a latest ruling, said at least half the number of judges should sit in high courts on alternate days during the pandemic and attend to matters of urgency and individual liberty.

A bench of justices Hemant Gupta and V Ramasubramanian lamented that cases relating to the life and liberty of the accused were not being listed for hearing in some of the high courts due to the non-availability of judges.


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 offences:

According to section 436 of CrPC, If the offence alleged is bailable, then, the accused is entitled for Bail as a matter of right and not as a favour. Bailable offences 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 have 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 offence.

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 total period of custody.

Legal provisions pertaining to 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.


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