The Supreme Court and Bail Law: Basics Explained

Read:Explained: The bail law and Supreme Court call for reform | Explained News,The Indian Express

The Supreme Court underlined that “there is a pressing need” for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.

          A two-judge Bench comprising Justices Sanjay Kishan Kaul and M M Sundaresh issued certain clarifications to an older judgment delivered in July 2021 on bail reform (Satender Kumar Antil vs CBI). The 85-page ruling is essentially a reiteration of several crucial principles of criminal procedure.

                    Referring to the state of jails in the country, where over two-thirds lodged are undertrials, the Supreme Court underlined that arrest is a draconian measure that needs to be used sparingly.

       The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail. A key feature is that one of the aims of the legislation is “reducing the size of the inmate population”. The law also has provisions for ensuring legal aid for defendants.

The court’s ruling is in the form of guidelines, and it also draws the line on
certain procedural issues for the police and judiciary.

 SEPARATE LAW FOR BAIL: The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects. The court made this point to signal that despite its rulings, structurally, the Code does not account for arrest as a fundamental liberty issue in itself.

It also highlighted that magistrates do not necessarily exercise their discretionary powers uniformly. The court’s solution to this is the framing of a separate law that deals with the grant of bail.

INDISCRIMINATE ARRESTS: The court noted that the culture of too many arrests, especially for non-cognizable offences, is unwarranted. It emphasized that even for cognizable offenses, an arrest is not mandatory and must be “necessitated”.

 “Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence. He/she can also be arrested to prevent such person from making any inducement, threat, or promise to any person according to the facts, so as to dissuade him from disclosing said facts either to the court or to the police officer. One more ground on which an arrest may be necessary is when his/her presence is required after arrest for production before the Court and the same cannot be assured,” the court said.

 BAIL APPLICATION: “There need not be any insistence of a bail application while considering the application under Section 88, 170, 204, and 209 of the Code,” the court held.

 These sections relate to various stages of a trial where a magistrate can decide on the release of an accused. These range from the power of the magistrate to take bond for appearance (Section 88) to the power to issue summons (Section 204). The Supreme Court held that in these circumstances, magistrates must routinely consider granting bail, without insisting on a separate bail application.

DIRECTION TO STATES: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.


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.



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