CHAPTER-II

CLASSIFICATION OF OFFENCES AND BAIL MECHANISM

The Cr. P.C. classifies offences into two categories bailable and non-

bailable. The classification is done mainly on the basis of the gravity of the

offence and the punishment provided for such offence. Generally speaking, a

bailable offence is considered to be less grave and serious than a non-bailable

offence. Bailable and non-bailable offences are defined in clause (a) of S. 2 of the

Cr. P.C., as under:

“(a) “bailable offence” means an offence which is shown as

bailable in the First Schedule, or which is made bailable by any

other law for the time being in force; and “non-bailable offence”

means any other offence;”

It is pertinent to point out that individual offences under IPC have been

specifically declared as bailable or non-bailable in the first part of the first

Schedule to Cr. P.C. to find out whether that offence is bailable or non-bailable;

however, in the absence of any such declaration under such parent Act, the

general rules mentioned in the second part of the first Schedule to Cr. P.C. have to

be referred to, for deciding whether that offence is bailable or non-bailable.

Criminal Procedure Code has classified offences into two groups, namely

bailable and non-bailable depending on the gravity of the offences and the

punishment pre-Criminal Procedure Code (of 1898) (now, see under Ss. 436 to

450 of Cr. P.C. of (1973)). The main provision relating to bail in bailable cases is

contained in Section 496, Criminal Procedure Code (of 1898) and that relating to

non-bailable cases is given in Section 497, Criminal Procedure Code (of 1898).1

The classification of offences into the two categories of bailable and non-

bailable offences may perhaps be explained on the basis that bailable offences are

generally regarded as less grave and serious than non-bailable offences. On this

basis it may not be easy to explain why, for instance offences under Ss. 477, 477-

1 Nirmal Kumar Banerjee v. State, 1972 Cri LJ 1582 at p. 1583 (Cal).

33

A, 475 and 506 of the Indian Penal Code should be regarded as bailable whereas

offences under S. 379 should be non-bailable. However, it cannot be disputed that

S. 496 of Cr. P.C. (of 1898) recognizes that a person accused of a bailable offence

has a right to be enlarged on bail.2

Bailable offences have been defined under clause (a) of Section 2, Cr.

P.C., which means offence which is shown as bailable in the first Schedule, or

which is made bailable by any other law for the bail being in force and “non-

bailable offence” means any other offence. The first Schedule of Cr. P.C. consists

of two parts, the first part is regarding the offences under the I.P.C. and second

part is regarding offences against other law. The second part provides that if the

offence is punishable with imprisonment for less than three years of fine only it

shall be bailable and can be tried by any Magistrate.3

Section 4(1)(b) of Cr. P.C. (of 1898) defines bailable offence : bailable

offence means an offence shown as bailable in the second schedule, or which is

made bailable by any other law for the time being in force; and “non-bailable

offence” means any other offence.4

2.1 Difference in Bail Provisions in Bailable and Non-Bailable Offences

In the matter of admission to bail, the Code of Criminal Procedure makes

a distinction between bailable and non-bailable offences. The grant of bail to a

person accused of a non-bailable offence is discretionary under S. 497 of the Cr.

P.C. (of 1898) [equivalent to S. 437 of Cr. P.C. of 1973] and the person released

on bail may again be arrested and committed to custody by an order of the High

Court, the Court of Session and the Court granting the bail. Under S. 498 of the

Cr. P.C. (of 1898) [equivalent to S. 437 of Cr. P.C. of 1973], the High Court and

the Court of Session may release any person on bail and by a subsequent order

cause any person so admitted to bail to be arrested and committed to custody. A

person accused of a bailable offence is treated differently; at any time while under

detention without a warrant and at any stage of the proceedings before the Court

2 Talab Haji Hussain v. Madhukar Pushottam Mondkar, AIR 1958 SC 376 at p. 378 : 1958SCR 1226 : 1958 Cri LJ 701.

3 Abdul Aziz v. State of U.P.¸2002 Cri LJ 2913 a p. 2915 (All).4 Kanubhai Chhagnlal Brahmbhat v. State of Gujarat, 1973 Cri LJ 533 at p. 536 (Guj).

34

before which he is brought he has the right under S. 496 of the Cr. P.C. (of 1898)

[equivalent to S. 437 of Cr. P.C. of 1973] to be released on bail. The Cr. P.C. (of

1898) makes no express provision for the cancellation of a bail granted under S.

496 of Cr. P.C. (of 1898) for a bailable offence. Nevertheless, if at any subsequent

stage of the proceedings, it is found that any person accused of a bailable offence

is intimidating, bringing or tampering with the prosecution witnesses or is

attempting to abscond, the High Court has the power to cause him to be arrested

and to commit him to custody for such period as it thinks fit. This jurisdiction

springs from the overriding inherent powers of the High Court and can be invoked

in exceptional cases only when the High Court is satisfied that the ends of justice

will be defeated unless the accused is committed to custody. This inherent power

of the High Court exists and is preserved by S. 561-A of the Cr. P.C. (of 1898).

The person committed to custody under the orders of the High Court cannot ask

for his release on bail under S. 496 of Cr. P.C. (of 1898), but the High Court may

by a subsequent order admit him to bail again.5

The contrast between Ss. 496 and 497 of Cr. P.C. (of 1898) is apparent.

Under S. 496 the Magistrate has no discretion and he has got to enlarge the

person, accused of a bailable offence, on bail provided he is prepared to give bail;

while under Section 497, the Magistrate may refuse to enlarge him on bail in view

of certain circumstances which may be brought to his notice.6

If the offence is bailable, bail must be granted under Section 496, Criminal

Procedure Code (of 1898) [equivalent to S. 437 of Cr. P.C. of 1973]. But if the

offence is non-bailable, the Court should decide the question of granting the bail

in the light of considerations namely, the nature and seriousness of the offence, a

reasonable possibility of the presence of the accused being secured at the trial, a

reasonable apprehension of the evidence being tampering with and the quantum

of punishment.7

5 Ratilal Bhanji Mithani v. Asstt. Collector of Customs, Bombay, 1967 Cri LJ 1576 at p.1577.

6 Kanubhai Chhaganlal Brahmbhatt v. State of Guajrat, 1973 Cri LJ 533 at pp. 535-36(Guj).

7 Nirmal Kumar Banerjee v. State, 1972 Cri LJ 1582 at p. 1583 (Cal).

35

The basic distinction as to grant of bail in bailable and non-bailable

offences is that whereas a person accused of a bailable offence has a right to be

released on bail under S. 496 of J & K Cr. P.C. (of 1989 Smvt.) [equivalent to S.

437 of Cr. P.C. of 1973] the grant of bail to a person accused of a non-bailable

offence is in the discretion of the court under S. 497 of the said Code [equivalent

to S. 437 of Cr. P.C. of 1973], the grant of bail to a person accused of a non-

bailable offence is in the discretion of the court under S. 497 of the said Code

[equivalent to S. 437 of Cr. P.C. of 1973].8

Whenever an application for bail is made to a court, the first question that

it has to decide is whether the offence for which the accused is being prosecuted

is bailable or otherwise. If the offence is bailable, bail will be granted under S.

496 of the Code of Criminal Procedure (of 1898) [equivalent to S. 437 of Cr. P.C.

of 1973] without more ado; but if the offence is not bailable, further

considerations will arise and the Court will decide the question of grant of bail in

the light of those further considerations such as, nature and seriousness of the

offence, the character of the evidence, circumstances which are peculiar to the

accused, a reasonable possibility of the presence of the accused not being secured

at the trial, reasonable apprehension of witnesses being tampered with, the larger

interests of the public or the State, and similar other considerations which arise

when a court is asked for bail in a non-bailable offence.

2.2 Concept and Object of Bail

Ordinary dictionary meaning of word "Bail" is "Security for prisoner's

appearance". According to Wharton's Law Lexicon it means "to set at liberty a

person arrested or imprisoned, on security being taken for his appearance on a day

at a certain place, which security is called bail because the person arrested or

imprisoned is delivered into the hands of those who bind themselves or become

bail for his due appearance when required in order that he may be safely protected

from prison, to which if they have, if they fear his escape etc; the legal power to

deliver him." According to Black's Law Dictionary it stands for procuring release

8 Kali Dass v. S.H.O. Police Station Resi, 1979 Cri LJ 345 at p. 349 (J & K).

36

of one charged with an offence by insuring his future attendance in court and

compelling him to remain within jurisdiction of Court. The object of "Bail" in

civil cases is whether directly or indirectly to secure payment of a debt or

performance of other civil duties, while in criminal cases object is to secure

appearance of principal before the Court when his presence is needed. In its more

ancient signification, this word includes the delivery of property, real or personal,

by one person to another. Conceptually it continues to be understood as a right for

assertion of freedom against state imposed restraints. The main purpose of arrest

of an accused is to secure his presence on trial and to ensure his being available

for punishment on conviction, if the presence of an accused at his trial can be

ensured by means other than his arrest or detention, it would be quite possible to

allow him the enjoyment of his liability during his trial. One of the ways to

prevent unnecessary deprivation of the liberty of an accused is 'Bail".

Bail may thus be regarded as a mechanism whereby the state devaluates

upon the community the function of securing the presence of the prisoner, and at

the same time involves participation of the community in administration of

justice.

2.3 Mechanism of Bail

Bail is a post arrest remedy aimed at the release of the arrested suspect till

the date of his trial. The mechanism of bail can be best understood by studying the

components that particularly go into every bail decision namely: -

1. The circumstances leading to the arrest and detention of a person;

2. The factors for arriving at the bail decision like police record relating to

the offence, its bailable or non bailable nature, the furnishing of the

requisite security by the accused, need for surety and so on;

3. And, lastly interpreting the law relating to bail.

2.4 Functional Aspects of Bail

An arrested person can be released on bail only after his matter has been

duly processed through a judicial mind.9 The functional aspect of bail is to

9 Emperor Vs. Naga San HEWA 28 Cr.. L. J. 776 (FB) (Rangoon).

37

facilitate dispensation of criminal justice in a manner that it is not harsh and keeps

the judicial system of an even keel. The exercise of judicial discretion may thus

call for an examination of social realities as may smoothen the criminal process

for attaining just ends. Thus an accused placed in a position of indecency or

infirmity or any other kind of disability may favorably be included in the exercise

of judicial discretion for grant of bail. On the other hand, the possibility of the

accused absconding or his tampering evidence, or his repeating the offence may

justifiably negotiate chances of his release.10 The financial aspect of bail is,

therefore, to facilitate dispensation of criminal justice in an expedient and fair

manner (The limitation of exercise of the power to grant bail are thus applicable

to all offences irrespective of classification).

The fact that persons accused of 'bailable' offences can be refused bail.

While those charged of 'non-bailable' offences can be released suggests that, in

practice, the distinction between these two categories is not of much signification

in the total operation of the bail mechanism. The classification is more or less an

applicative norm suggested by the legislature. An accused can demand

release from custody by emphasizing that the society views his alleged

misconduct as bailable. The court may not in such a situation took merely to the

nature and gravity of the offence, but it may proceed further to give its thought or

other considerations. It is, of course, not any one single circumstance which

necessarily concludes the discretion but it is the combinative effect of all

combined circumstances. Further more any cognizance taken by the court in a bail

application of a person accused of a non bailable offence is not merely following

a letter of the law but an indulgence shown to an arrested person for grant of the

concession of release.11

10 K. N. Jaglekar Vs. Emperor 33 Cr. L. J. 94 (FB) (At) State of Rajasthan Vs. BalChand AIR 1997 SC 2447, 2448.

11 K.K. Warrior Vs. State of Kerala (1964) KLT 597, State Vs. Capt. Jagbir Singh SupraNote 4.

38

'The facility of bail' administratively provided is actually rooted in the

legal conception of 'right to bail'.12 When ever an application for bail is submitted

to the court, the first question to be decided is whether the offence for which the

accused is being prosecuted is bailable or non bailable. The answer does not lie in

the classification of offences under the Code. A release on bail is the consequence

of the concept of individual freedom implicit in Constitutional freedom; and so is

the interest of society. This cannot be wiped out of the consideration of the court

in exercising its power in the administration of criminal justice. However, notions

about bailable offences persist that once the society has offered a privilege of

granting bail through a legislative provision, the court must automatically grant

the bail. In other words, it puts the function of the judicial forum at par with a slot

machine which delivers the services or goods on mere insertion of a coin. It

cannot be so. This facility in the administration of criminal justice has to be

disposed of judiciously keeping view necessary constitutional norms of liberty

and security. If an offence is bailable, the chances of an accused to be bailed out

to freedom may be given a weightier consideration by administrators of criminal

justice, on the ground that the society is perhaps prepared to withstand

depredations of the wrongdoer in such cases, and that is why the society has

spelled out its desire by labeling the offence as bailable. Nonetheless the court

remains the final arbiter of interest of the individual as well as those of the

community.

2.5 Statutory Aspect of Bail Mechanism

A look into the First Schedule shows that the classification has been done

in two pars. Part 1 deals with offences under the Indian Penal Code. Part II deals

with the offences under other laws. The tabular details in part 1 of the First

Schedule indicate the kinds of offences in column 1. Further in column 5 of the

Table, itemized offences of the Indian Penal Code have been enumerated and are

characterized as bailable or non bailable.

12 See. S. 437 Cr. P.C. 1973 and first schedule (Col.5) CR.PC. 1973 against the offencesprescribing death or one of the alternate sentences.

39

Section 436 of the Code makes it clear that when a person other than a

person accused of a non bailable offence, is arrested and if her is prepared to give

bail, he shall be released on bail. This provision is mandatory.

An analysis of provisions of section 437 suggests that the grant of bail in

bailable cases needs to satisfy the following conditions, namely

(a) the person has been accused of a bailable offence;

(b) such person has been arrested or detained without a judicial warrant,

by an officer in charge of a police station or is brought before a

court; and

(c) such person is prepared to give bail at any time when he is in the

custody of such officer, or he is prepared to do so at any stage of the

proceeding before such court.

A release on bail in bailable offences is without condition. The accused

cannot be compelled to appear before the police since such condition would be

repugnant to section 436.13 A police officer should grant bail on furnishing a

reasonable amount of surety.14 An improper refusal of bail is in violation of a duty

cast upon him. It has been held in re District Magistrate, Vizagapatnam15, that in

bailable offence the discretion is to be restricted to the demand of security to

ensure the presence of the person when required him to do so. The Allahabad

High Court has held that there is no discretion in law to impose conditions for

grant of bail except with regard to security and sureties.16

Thus, when a person is accused of a bailable offence and is arrested or

detained without a judicial warrant by a police officer or when he is produced

before a court and is prepared to give bail, he shall be released on bail. Since the

police power to arrest without warrant tends to be a serious encroachment on

personal liberty, the bail mechanism seeks to interpose and provide a protective

ring to a person accused of a bailable offence till judicial cognizance of the matter

is taken. The accused has to be released on bail the moment he is prepared to

13 Public Prosecutor v. Raghurawiah (1957) MLJ (Cri) 609.14 1868 Punjab Ref. (Crl.) No. 2.15 AIR 1949 Mad 77. See also in re Appalaakonda AIR 1942 Mad. 740.16 Rex v. Genda Singh, AIR 1950 All 525.

40

furnish bail. The question of producing the accused before a magistrate would

only arise if the accused after his arrest, was not prepared to give bail before

the police officer. When a person is arrested by the police for a bailable offence,

he is to be produced before the magistrate having jurisdiction in the case, but

if he is produced before the magistrate and at that stage he is prepared to give bail.

The magistrate has no option but to release him. These provisions are mandatory

and the police officer or the court has no discretion in the matter even by way of

authorizing detention in police custody, for purposes of investigation.17

2.6 Police Officer has no Discretion to Refuse Release on Bail

S. 436 Cr. P.C. makes it clear that grant of bail need not necessarily by the

Court only. The police officer has also the jurisdiction to release the person on

bail with or without surety.18

In the case of bailable offences to which S. 436 of Cr. P.C. applies, a

police officer has no discretion at all to refuse to release the accused on bail, so

long as the accused is prepared to furnish surety. In the instant case it was held

that as the accused was prepared to furnish security, the respondent police officer

was bound to release him on bail.19

In the case of a bailable offence, the police officer arresting an accused,

himself will give bail and if for any reason he fails to do so, the Court will

necessarily give bail.20

In the case of Dharmu Naik v. Rabindranath Acharya,21 the appellant and

his brother were involved in a bailable offence and were arrested by the

respondent police officer inspite of bail granted to them earlier by the Magistrate.

It was held by the High Court that the respondent police officer illegally arrested

the appellant and his brother and detained them in police custody though they had

been previously enlarged on bail and the bail order was produced before him. It

17 Kanubhai V. Brahmali v. State 1972 Guj LR 748.18 Chowriappa Constructions v. Embassy Constraints and Devpt P. Ltd., 2002 Cri LJ 3863

at p. 3865 (Kant).19 Dharmu Naik v. Rabindranath Acharya, 1978 Cri LJ 864 at p. 867 (Ori).20 Surendra Kumar v. State of M.P., 1995 Cri LJ 1517 at p. 1519 (MP).21 1978 Cri LJ 864 at p. 867 (Ori).

41

was held that it was hard to believe that the appellant and his brother, who had, in

apprehension of their arrest, obtained the release order after surrendering in court,

would keep quiet and would not produce the bail order and would silently submit

to police custody without protest. It was further observed that even assuming that

no bail order was produced before the respondent police officer, yet evidence

showed that surety was offered at the time of arrest of the appellant and that

therefore the respondent was bound to release him on bail in view of the fact that

in a bailable offence the police officer has no discretion at all to refuse to release

the accused on bail, so long as the accused is prepared to furnish surety.

Accordingly, the respondent police officer was convicted under S. 342 IPC for

wrongful confinement.

2.7 Meaning of Words ‘Appear’ and Appearance

The expression ‘appear’ occurring in Ss. 496 and 497 of J & K Cr. P.C.

(of 1989 Smvt.) [equivalent to Ss. 436 and 437, respectively, of Cr. P.C. of 1973]

includes “voluntary appearance” as when a person accused of an offence seeks

bail by ‘appearing’ in court, he in fact surrenders himself to the custody of the

court and the expression ‘appear’ in that sense means “presents and surrenders”

himself before the court. In such circumstances there would be notional detention

of the accused person. The first step, therefore, which must be taken by any

person who wishes to be admitted to bail prior to his actual arrest or detention,

would be to appear before a court and to surrender to the custody of the court.

Once the accused surrenders to the court, he is in the custody of the court and,

therefore, it can be said that he is then under an actual physical restraint from

which he seeks to be released.22

The appearance mentioned in Sections 436 and 437 of Cr. P.C. can only

mean physical appearance of the accused and not appearance by counsel because

the very notion of bail presupposes restraint of the accused and hence the person

22 Kali Das v. S.H.O. Police Station Resi, 1979 Cri LJ 345 at p. 350 (J & K).

42

who wishes to be released on bail is to appear and surrender before the Court. A

person who is not under any sort of restraint does not require to released on bail.23

2.8 Bail when a Person Voluntarily ‘Appears’ before Court

The word ‘appears’ occurring in Section 496 Cr. P.C. (of 1898)

[equivalent to S. 436 of Cr. P.C. of 1973] includes voluntary appearance of the

accused even in the absence of any summons or warrant. It was held that, in the

instant case, in that sense the respondents-accused undoubtedly appeared, in

person, before the Magistrate when they made the application for bail and that

they had also executed personal and security bonds as directed by the

Magistrate.24

There is no doubt that there has been divergent opinion regarding the

expression ‘appears’ as used in Section 436 Cr. P.C. (Section 496 of old Cr. P.C.

of 1898). One view is that the word ‘appears’ in the context of this section, means

appearance in obedience to summons or bailable warrant or in pursuance of an

undertaking to appear contained in a bond executed by a person when he is

arrested and released by the police; the word does not refer to voluntary

appearance of the accused to whom no summons or warrant has been issued or

who has not undertaken so to appear. The other view is that the word ‘appears’ is

wide enough to include voluntary appearance of the person accused of an offence

even where no summons or warrant has been issued against him.25

The preponderance of judicial opinion is that the words, ‘bail’ and

‘released on bail’ imply the accused being already in restraint and his being set at

liberty from such restraint. Releasing an accused on bail means releasing him

from custody or prison and delivering him into the hands of sureties. Therefore,

the concept of bail implies a form of previous restraint. The power to grant bail

does not envisage the grant of bail to a person who is under no restraint. A person,

who is under no previous restraint, does not need any order of bail as he is free to

23 State of W.B. v. Pranab Ranjan Roy, (1998)3 SCC 209 at p. 215.24 State of Mysore v. Baswanath Rao, 1966 Cri LJ 267 at p. 268 (Mys) : AIR 1966 Mys 71 :

(1965)1 Mys LJ 365.25 B. Narayanappa v. State of Karnataka, 1982 Cri LJ 1334 at p. 1335 (Kant).

43

go anywhere he likes. It is difficult to see how a mere threat or possibility of an

accused person being arrested could amount to a restraint on him. Until he is so

arrested, he is free to move about as he likes. On investigation the police may find

that there is not sufficient reason to arrest him; or on interrogation he may be able

to give satisfactory explanation when may convince the police that there is no

reasonable material to proceed against him. It was held that, in the instant case, as

the respondents-accused had not been arrested nor was any warrant issued for

their arrest, nor was there any order issued by any police officer under s. 56 Cr.

P.C. (of 1898), for their arrest, the Magistrate could not have granted bail merely

in anticipation of any such action against them.26

There is nothing in S. 436(1) of Cr. P.C. either to exclude voluntary

appearance or to suggest that the appearance of the accused must be in obedience

to a process issued by the Court. No doubt the other expression used in the section

as “is brought before Court” have reference to prior arrest and bringing of such

person before Court by the police either in pursuance of a process issued by the

Court or otherwise on account of the inability of such person arrested to give bail

immediately on being arrested and detained by an officer in charge of the police

station. The word ‘appears’ as used in the section is wide enough to include the

voluntary appearance.27 It was observed in this case that the aforesaid earlier

decision of the Mysore High Court in the case of State of Mysore v. Baswanth

Rao,28 to the contrary, was no longer good law in view of the Supreme Court

decision in the case of Niranjan Singh v. Prabhakar Rajaram Kharote,29 wherein

it had been held that a person can be stated to be in judicial custody when he

surrenders before the court and submits to its directions.30

Where in a case involving only bailable offences, the accused having

appeared before the Court had submitted to the jurisdiction of the Court and asked

26 State of Mysore v. Baswanth Rao, 1966 Cri LJ 267 at pp. 268-70 (Mys) : AIR 1976 Mys71 : (1965)1 Mys LJ 365.

27 B. Narayanappa v. State of Karnataka, 1982 Cri LJ 1334 at p. 1335 (Kant).28 1966 Cri LJ 267 (Mys) : AIR 1966 Mys 71 : (1965)1 Mys LJ 365.29 AIR 1980 SC 785 at p. 787 : 1980 Cri LJ 426 : (1980)2 SCC 559 : 1980 SCC (Cri) 508.30 B. Narayanappa v. State of Karnataka, 1982 Cri LJ 1334 at pp. 1335-36 (Kant).

44

for bail, it was held that if the surrender and the physical presence of the accused

with submission to the jurisdiction and orders of the Court is judicial custody,

then the accused herein having appeared before the Court and asked for bail, they

were under restraint and they had submitted to the jurisdiction of the Court. It was

held that the Magistrate, therefore, could not reject their bail application.31

2.9 Release Forthwith or can be Detained up to 24 Hours?

S. 436 of the Code provides that when any person other than a person

accused of a non-bailable offence is arrested or detained without warrant by an

officer in charge of a police station, or appears or is brought before a Court, and is

prepared at any time while in the custody of such officer or at any stage of the

proceeding before such Court to give bail, such person shall be released on bail.

In view of the aforesaid language used in the section, it appears that the person

arrested in such a case must be released on bail as soon as he is prepared to give

bail, even if it be immediately after his arrest. It is submitted that it is not lawful

to detain a person for a period longer than what is laid down in this section;

therefore, it is not lawful for a police officer to detain such a person unnecessarily

for a period up to 24 hours.

S. 436 of the Code provides that when any person other than a person

accused of a non-bailable offence is arrested or detained without warrant by an

officer in charge of a police station, or appears or is brought before a Court, and is

prepared at any time while in the custody of such officer or at any stage of the

proceeding before such Court to give bail, such person shall be released on bail.32

2.10 Conditions as to Sureties in Bailable Offence not to be Excessive

Since Section 436 of Cr. P.C. makes an invariable rule for bail in case of

bailable offences subject to specified exception under sub-section (2), the surety

aspect also has to be kept in mind while dealing with a case of that nature.

Conditions relating to sureties should not be excessive as it would virtually

amount to denial of bail itself.33

31 B. Narayanappa v. State of Karnataka, 1982 Cri LJ 1334 at p. 1336 (Kant).32 Janardan Yadav v. State of Bihar, 1978 Cri LJ 1318 at p. 1319 (Pat).33 Anwar Hussain v. State of Orissa, 1995 Cri LJ 863 at p. 865 (Ori).

45

Where the Court directed the accused, who had allegedly committed a

bailable offence relating to illicit distilled liquor punishable under Section 47 of

Bihar and Orissa Excise Act, 1915, to be released on bail of Rs. 2,000 with one

surety for the like amount and to deposit cash security of Rs. 2,000 on the ground

of there being likelihood of his absconding, it was held that the direction to

furnish cash security in addition to bail bond of other surety was clearly

untenable.34

In a case under S. 138 of the Negotiable Instruments Act, on summons

being issued, the accused remained present in the court along with his counsel. On

a bail application being filed, the Magistrate directed his release on bail on

executing personal bond and surety bond, but as no surety was furnished he was

remanded to judicial custody. It was held by the Karnataka High Court that as

long as the warrant had not been issued to the accused and when the accused was

present along with his counsel in response to the summons, there was no need for

the Magistrate to have passed order calling upon the accused to furnish security

for his enlargement, which was illegal and liable to be quashed.35

It may be pointed out that S. 436 Cr. P.C. has been amended by Act No.

25 of 2005 to ensure that a poor person does not have to remain in custody in a

bailable offence due to not being able to furnish sufficient sureties. The words

“and shall, if such person is indigent and is unable to furnish surety,” were

inserted in the first proviso to S. 436(1), by the said amending Act No. 25 of

2005, to make it binding to release an indigent person who is unable to furnish

surety on his personal bond without sureties. Moreover, an Explanation has been

added to the first proviso to S. 436(1), by the aforesaid amending Act No. 25 of

2005, to raise a presumption in favour of a person being an indigent person, if he

is not able to furnish bail within a week of the date of arrest. This implies that if a

person is unable to furnish bail without a week of the date of arrest, he may be

presumed to be an indigent person and accordingly, he may be released on his

34 Anwar Hussain v. State of Orissa, 1995 Cri LJ 863 at p. 866 (Ori).35 K. Pandarinathan v. Raju, 1998 Cri LJ 1128 at pp. 1128-29 (Kant) : ILR (1997)

Karnataka 2560.

46

personal bond without sureties. This amendment thus makes it possible even for a

poor person to claim bail in a bailable offence as a matter of right, though it

appears that in some cases there may still be a delay of 7 days before the said

presumption is made to operate in his favour.

There are circumstances under which an accused may be admitted bail in

case of a non bailable offence. In case where there appears reasonable ground for

believing that the accused has been guilty of an offence punishable with death or

imprisonment for life bail cannot be granted unless the case is covered by the

proviso to sub-section (1) of section 437 of the Code of Criminal Procedure that

is, the accused is under the age of sixteen years or is a woman or is a sick or

infirm person.

When an application for bail is moved under section 437 of the Code, the

court has to see whether there are reasonable grounds for believing that the

accused is allegedly guilty of an offence punishable with death or imprisonment

for life; that if it so appears the court has no jurisdiction to grant bail. Indeed this

affects the doctrine of presumption of innocence of the accused which underlies a

criminal trial. But practical exigencies of the working of the bail system does not

vest the power in the court. For that purpose the court has to apply its mind to the

material made available to it by the prosecution to satisfy itself that a prima facie

case exists and that the prosecution would be able to produce good evidence

which may establish the guilt of the accused in relation to the alleged offence. The

niceties of evidence or the details of the matter cannot be looked into at that

stage.36 Prima facie satisfaction regarding the alleged involvement in the

commission of the offence is the only test.

The mere fact that the charge sheet is for an offence punishable with the

sentence of death or the imprisonment for life does not deprive the judicial

authorities of their discretion to grant bail. Merely because it is stated by the

police that the person before the court is an accused in a case falling under the

36 Kanubhai V. Brahmbali v. State, 1972 Guj. LR 748.

47

express category of non bailable offence, the court will not be justified in refusing

the bail to that person at once.37

The Supreme Court has held in Talab Haji Hussains' case that the grant of

bail in non bailable offences is a matter of jurisdiction. A person cannot be

admitted to bail if he is forwarded to a court which is not competent to try him.38

It has, however, been held in Ahmad v. Crown39 that in non bailable case an

accused can be released on bail at the pre-trial stage. In the above noted case, it

was observed that where further enquiry is necessary in a non bailable offence

and where there is no reasonable ground to believe that the accused has been

guilty of the offence, he can be granted bail by the police during investigation of

the case and by the concerned court during an enquiry.

There is no hard and fast rule in the matter of granting or refusing bail with

reference to offences under which the crime is registered. The exercise of power

with regard to bail is a judicial act and not a ministerial one.40 It implies that the

court must satisfy itself on all such counts as are pertinent to hold accused in

custody or to release him on bail for the purpose of proper administration of

criminal justice. The power is wide enough to judge the issues of liberty and

security and it cannot be delegated.41 The expansive power in the matter of bail

be exercised with Judicial discretion on considerations contained in the material

before it to see that neither the prosecution nor the defence would be hampered in

procuring or preparing its case.42

As a matter of policy, bail is to be denied where there is a prima facie

belief that the offence alleged to have been committed would entail a punishment

of death of imprisonment for life. It is likely that in such a case refusal to release

an accused on bail is taken on a basis which precludes consideration of the full

facts and evidence judicially. However, arrests in such cases are made only after

37 Per Das Jon Sagri Bhagat v. State, 52 Cr. L.J. 657 (D. B.), Patna; also Khadim Ali v.Emperor, 22 Cr. L.J. 654 (All).

38 Ghulam Mohd v. State, AIR 1959 MO 147.39 AIR 1950 Lah. 1951.40 Govinda Parshad v. State, 1975 Cr. L.J. 1249, 1255 (Cal).41 Emperor v. Banarsi Dass 168 I.C. 876 : Emperor v. Mattu 10 Cr. L.J. 225.42 Paras Ram v. State, AIR 1951 HP 13.

48

some investigation has already been gone into by the police and the arrests are

invariably effected through a warrant of arrest. Since judicial interposition takes

place at the stage of issuing the warrant of arrest, it is deemed that in non bailable

cases some application of judicial mind has already been made which may be

providing an insurance against any possible undue deprivation of liberty of an

accused.

It may be pointed out that offences under the Indian Penal Code have not

been differentiated by the legislature on the basis of harm caused to the interests

of society, which the criminal law seeks to serve in order to sustain the stability of

the social order. The incoherence in this regard extends further when labeling of

offences as bailable and non bailable is to be made under laws other than the

Indian Penal Code. As noted above, the criterion laid down is that if an offence is

cognizable and is punishable with more than three years of imprisonment, it is

non bailable. It has also been noted that in a case where the police is kept out of

the picture for purposes of apprehending a suspect or an accused because the

offence is punishable with less than three years of imprisonment or fine, it has to

be treated as a bailable offence.

The foregoing criteria do not convince that the seriousness of an offence

with all its potential to erode the foundations of a social order has been duly taken

into account while formulating the classification of offences into bailable and

non-bailable.

The law of bails does not permit an accused to be enlarged on bail if it

appears to the court that he has committed an offence which could entail upon

him a punishment of either death or imprisonment for life. The basis for refusal of

bail in such cases can be construed as laying down a policy that in serious

misadventures on the part of an accused of the kind noted above, the social order

is likely to be affected. Hence his release on bail would be counter productive to

social interests. In practice, the use of police power in dealing with non-bailable

cases gets scrutinized by a judicial mind particularly when judicial power is

invoked for obtaining warrants of arrest, search or seizure or attachment or

49

property under sections 80 and 81 of the Code. The functional utility of such

scrutiny is that it acts as a check on the powers of the police.

Thus, a view of the legal and functional aspects of bail portrays that the

legislature has not been fully clear as to how this component of administration of

criminal justice be devised and made to function as a system. The absence of a

clear definition of bail and the irrational mode of classification of crimes and the

operational system of bail show an dissatisfactory state of working of the bail

system probably due to a lack of proper conceptual understanding. Judicial

decisions have contributed yet only marginally limiting themselves generally to

the fact situations of a case.

2.11 Every Citizen Entitled to Liberty till he Commits and Offence

Bail or jail? That’s the question. Every citizen is presumed to be law-

abiding and innocent. But when the court speaks of presumption of innocence of

the accused, it only means to stress that the burden of proving guilt lies entirely on

the prosecution and that strict proof must be given for holding that the accused is

guilty. This is based on the principle that every citizen is entitled to live in liberty

till he commits an offence; and nobody, including the State, should take away his

liberty without establishing before a court of law that he had committed the

offence and thus rendered himself disqualified for enjoying the liberties of a free

citizen.43

2.12 Balancing personal Liberty and Investigational Powers of Police

The society has a vital stake in both interests – personal liberty and the

investigational powers of the police, though their relative importance at any given

time depends upon the complexion and restraints of political conditions.44

The horizon of human rights is expanding. At the same time, the crime

rate is also increasing. Observing thus, the Supreme Court noted in a case that of

late, it had been receiving complaints about violation of human rights because of

43 Bhola v. State, 1974 Cri LJ 1318 at p. 1319 (All).44 Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1635.

50

indiscriminate arrests. Stressing a need to strike a balance between the two, the

Supreme Court held that a realistic approach should be made in this direction.45

The police in India have to perform a difficult and delicate task,

particularly in view of the deteriorating law and order situation, communal riots,

political turmoil, student unrest, terrorist activities, and among others the

increasing number of underworld and armed gangs and criminals. Many hard core

criminals like extremists, the terrorists, drug peddlers, smugglers who have

organized gangs, have taken strong roots in the society. It is being said in certain

quarters that with more and more liberalization and enforcement of fundamental

rights, it would lead to difficulties in the detection of crimes committed by such

categories of hardened criminals by soft peddling interrogation. It is felt in those

quarters that if Court lay too much of emphasis on protection of their fundamental

rights and human rights, such criminals may go scot-free without exposing any

element or iota of criminality with the result, the crime would go unpunished and

in the ultimate analysis the society would suffer. The concern is genuine and the

problem is real. To deal with such a situation, a balanced approach is needed to

meet the ends of justice. This is all the more so, in view of the expectation of the

society that police must deal with the criminals is an efficient and effective

manner and bring to book those who are involved in the crime. The cure cannot,

however, be worst than the disease itself.46

2.13 Freedom of Individual vis-à-vis Security of State

There can be no gain saying that freedom of an individual must yield to

the security of the State. The right of preventive detention of individuals in the

interest of security of the State in various situations prescribed under different

statutes has been upheld by the Courts. The right to interrogate the detenus,

culprits or arrestees in the interest of the nation, must take precedence over an

individual’s right to personal liberty. The Latin maxim salus pouli est suprema lex

(the safety of the people is the supreme law) and salus republicae est superma lex

(safety of the State is the supreme law) co-exist and are not only important and

45 Joginder Kumar v. State of U.P., (1994)4 SCC 260 at p. 263.46 D.K. Basu v. State of W.B., (1997)1 SCC 416 at p. 434.

51

relevant but lie at the heart of the doctrine that the welfare of an individual must

yield to that of the community. The action of the State, however, must be “right,

just and fair”.47

2.14 Balance between Individual Liberty and Interest of Society

While it is true that Article 21 of the Constitution is of great importance

because it enshrines the fundamental right to individual liberty, but at the same

time a balance has to be struck between the right to individual liberty and the

interest of society. No right can be absolute, and reasonable restrictions can be

placed on them. While it is true that one of the considerations in deciding whether

to grant bail to an accused or not is whether he has been in jail for a long time, the

court has also to take into consideration other facts and circumstances, such as the

interest of the society.48

2.15 Deprivation of Personal Liberty only in Accordance with Procedure

Established by Law

The law presumes an accused to be innocent till his guilt is proved. As a

presumably innocent person, he is entitled to all the fundamental rights

guaranteed to a citizen under our Constitution. Under Article 21 of the

Constitution no person shall be deprived of his life or personal liberty except

according to the procedure established by law. Personal liberty is precious and the

Courts have to zealously guard it against any onslaught from any quarter. Subtle

inroads into this valuable right under the cover of legal power or procedural

requirement have to be vigilantly watched and averted whenever it is found that

such inroads are not strictly in accordance with the procedure established by law.

Deprivation of personal liberty by detention before proof of guilt is permitted in

the Code of Criminal Procedure not as a measure of possible punishment for the

offence alleged but only to ensure fair and proper investigation and trial.

Deprivation of personal liberty does not merely mean complete deprivation; even

partial deprivation is deprivation. Any restraint on personal liberty, though does

not amount to a complete deprivation of personal liberty, but constitutes merely a

47 D.K. Basu v. State of W.B., (1997)1 SCC 416 at pp. 435-36.48 Rajesh Ranjan Yadav v. CBI, (2007)1 SCC 70 at p. 79.

52

curtailment, can be effect only in accordance with the procedure established by

law.49

It is true that there is Constitutional sanction behind punitive proceedings

in order to achieve security of the State and the larger interest of the public. Even

so, the personal liberty of an accused is fundamental and can be circumscribed

only by some process sanctioned by law.50

2.16 Supreme Court’s Observations for Improvements in Bail Law

In Moti Ram v. State of M.P.,51 the Supreme Court made the following

important observations for improvements in the laws relating to grant of bail:

“We leave it to Parliament to consider whether in our socialist

republic with social justice as its hallmark, monetary superstition,not other relevant considerations like family ties, roots in the

community, membership of stable organizations, should prevail for

bail bonds to ensure that the ‘bailee’ does not flee justice. The bestguarantee of presence in court is the reach of the law, not the

money tag. A parting thought. If the indigents are not to be

betrayed y the law including bail law, re-writing of manyprocessual laws is an urgent desideratum; and the judiciary will dowell to remember that the geo-legal frontier of the Central Codes

cannot be disfigured by cartographic dissection in the name oflanguage or province.”

2.17 Right to Obtain Bail is Substantive Right

It is true that right to obtain a bail is a substantive right. There is no

change so far as the old Code and the new Code are concerned, so far as right of

accused to obtain bail is concerned. There is no change in the offencesenumerated as bailable or non-bailable offences, so far as the old Code and thenew Code are concerned. That substantive right of the accused to claim that the

offences for which he is tried are bailable has remained.52

49 Shaik Layak v. State, 1981 Cri LJ 954 at p. 957 (AP).50 Ram Sahodar v. State of M.P., 1986 Cri LJ 279 at p. 280 (MP) : 1985 Jab LJ 750.51 AIR 1978 SC 1594 at p. 1601 : 1978 Cri LJ 1703 : (1978)4 SCC 47 : 1979 SCR (1) 335 :

1978 SCC (Cri) 485.52 Sukar Narayan Bakhia v. Rajnikant R. Shah, 1982 Cri LJ 2148 at p. 2155 (Guj).

53

2.18 Duty of Magistrate to Ensure Non-Violation of Liberty of Citizens

It is the duty of every Magistrate, whether Judicial or Executive, to see

that citizen’s liberty is not violated and his release from imprisonment not

delayed. They should guard against fanciful notions and unreasonable

apprehensions. The liberty of an individual is a matter of great constitutional

importance in our system of governance. It is the duty of every Magistrate as the

custodian and the sentinel on the ever vigilant guard of the freedom of an

individual who has a precious right under the Constitution which cannot be taken

away capriciously, arbitrarily or without legal justification.53

It is expected, as rules enjoin, that bail applications should be promptly

disposed and given precedence. Executive Magistrates should not forget that they

are also expected to act in accordance with law with fairness and in a judicious

manner. Their orders and record should bear an express live concern for fairness.

They should also see to it that whenever the record is requisitioned b the superior

Court of Session to whom Executive Magistrates are undoubtedly subordinate,

they must promptly dispatch the record, rather than withholding the same on

fanciful grounds and notions.54

2.19 Order of Bail Can be Effective only from Time of Arrest

Any order of bail can be effective only from the time of arrest of the

accused. Wharton’s Law Lexicon explains ‘bail’ as “to set at liberty a person

arrested or imprisoned, on security being taken for his appearance”. Thus bail is

basically release from restraint, more particularly the custody of Police.55

2.20 Cr.P.C. Permits Curtailment of Liberty of Anti-Social and Anti-

National Elements

Liberty occupies a place of pride in our socio-political order. And who

knew the value of liberty more than the founding fathers of our Constitution

whose liberty was curtailed time and again under Draconian laws by the colonial

rulers. That is why they provided in Article 21 of the Constitution that no person

53 Tejgir v. State of M.P., 1986 Cri LJ 49 at pp. 50-51 (MP).54 Mansur v. State of M.P., 1986 Cri LJ 57 at p. 59 (MP) : 1985 (2) Cur Cri J 313.55 D.K. Ganesh Babu v. P.T. Manokaran, 2007 Cri LJ 1827 at p. 1828 : AIR 2007 SC 1450

: (2007)4 SCC 434 : (2007)2 SCC (Cri) 345.

54

shall be deprived of his personal liberty except according to procedure established

by law. It follows therefore that the personal liberty of an individual can be

curbed by procedure established by law. The Code of Criminal Procedure, 1973,

is one such procedural law. That law permits curtailment of liberty of anti-social

and anti-national elements. Article 22 casts certain obligations on the authorities

in the event of arrest of an individual accused of the commission of a crime

against society or the Nation. In cases of under-trials charged with the

commission of an offence or offences the court is generally called upon to decide

whether to release him on bail or to commit him to jail. This decision has to be

made mainly in non-bailable cases, having regard to the nature of the crime, the

circumstances in which it was committed, the background of the accused, the

possibility of his jumping bail, the impact that his release may made on the

prosecution witnesses, its impact on society and the possibility of retribution,

etc.56

2.21 Detention in Non-Bailable Offence not Violative of Article 21

It is trite law that personal liberty cannot be taken away except in

accordance with the procedure established by law. Personal liberty is a

constitutional guarantee. However, Article 21 which guarantees the above right

also contemplates deprivation of personal liberty by procedure established by law.

Under the criminal laws of this country, a person accused of offences which are

non-bailable is liable to be detained in custody during the pendency of trial unless

he is enlarged on bail in accordance with law. Such detention cannot be

questioned as being violative of Article 21 since the same is authorised by law.

But even persons accused of non-bailable offences are entitled to bail if the court

concerned comes to the conclusion that the prosecution has failed to establish a

prima facie case against him and/or if the court is satisfied for reasons to be

recorded that in spite of the existence of prima facie case there is a need to release

such persons on bail where fact situations require it to do so. In that process a

person whose application for enlargement on bail is once rejected is not precluded

56 State of Maharashtra v. Captain Buddhikota Subha Rao, AIR 1989 SC 2292 at p. 2295 :1989 Cri LJ 2317 : 1989 Supp (2) SCC 605 : 1990 SCC (Cri) 126.

55

from filing a subsequent application for grant of bail if there is a change in the

fact situation. In such cases if the circumstances then prevailing require that such

persons be released on bail, in spite of his earlier applications being rejected, the

courts can do so.57

2.22 Bail-Generally

An unnecessarily prolonged detention in prison of under-trails before

being brought to trial is an affront to all civilized norms of human liberty. Any

meaningful concept of individual liberty which forms the bedrock of a civilized

legal system must view with distress patently long periods of imprisonment

before persons awaiting trial can receive the attention of the administration of

justice. The primary principle of criminal law is that imprisonment may follow a

judgment of guilt. But should not precede it. But there is another principle which

makes it desirable to ensure that the accused is present to receive his sentence in

the event of being found guilty. The Code of criminal Procedure, both the old

Code and the new, include provision for the release of a person on bail or on the

execution of a bond without sureties for his appearance.58

The provisions of the Criminal Procedure Code confer discretionary

jurisdiction on criminal courts to grant bail to the accused pending trials or in

appeals against convictions. Since the jurisdiction is discretionary it is required to

be exercised with great care and caution by balancing valuable right of liberty of

an individual and the interest of the society in general. In granting or refusing the

bail, the courts are required to indicate, may be very briefly, the reasons for grant

or refusal of bail. The jurisdiction is not to be exercised in a casual and cavalier

fashion.59

57 Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005)2 SCC 42 at p. 52.58 Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980)1 SCC 81 at p. 89 :

AIR 1979 SC 1360 : 1979 Cri LJ 1036 : 1980 SCC (Cri) 23 (per PATHAK, J.).59 Mansab Ali v. Irsan, (2003) 1 SCC 632 at p. 633 : AIR 2003 SC 707 : 2003 SCC (Cri)

399.

56

2.23 An Estimation of Existing Bail Mechanism

The Supreme Court has provided a rational guideline for operation of the

bail mechanism. Avoidance of risk to fair trial underlies the scheme of criminal

justice under the code and minimisation of risk to fair trial has to be the primary

concern while exercising the power to grant bail. The privileges and facilities are

to be granted to a person accused as an offence but these are not to be permitted to

be used to cause interruption to the smooth functioning of the course of justice

and also to create obstructions in the working of judicial institutions in a manner

that may affect the speed of justice as well as to the very credibility of the

institution. A risk to fair trial may come up from several directions. The abuse of

freedom by a person enlarged on bail is indeed a serious threat, but a drag on

ones’ freedom by way of continued incarceration caused by delayed dispensation

of justice in criminal courts is equally obnoxious and can well be covered under

the test of “risk to fair trial”. Accordingly, the bail mechanism which has to

operate to protect the judicial system from risks and hazards of an offender facing

a trial, has also to be directed to operate in a way that may implicitly secure a time

bound schedule for consummation of the fair trial in each case. By far the

legislative and judicial efforts have lacked to supplement this missing component

of the bail mechanism.

It may be pointed out that classification of offences under the Indian Penal

Code, as ‘bailable’ and ‘non-bailable’ lacks a logical systematization. These have

not been differentiated by the by legislature on the basis of harm caused to the

interests of society, which the criminal law seeks to serve in order to sustain the

stability of the social order. The incoherence in this regard extends further when

labeling of offences as bailable and non-bailable has to be made under laws other

than the Indian Penal Code. Criterion laid down is that if an offence is cognizable

and is punishable with less than three years of imprisonment, it is non-bailable. It

57

has also been noted that in a case where the police is kept out of the picture for

purposes of apprehending a suspect or an accused because the offence is

punishable with less than three years of imprisonment or fine, it has to be treated

as bailable offence.

The foregoing criteria do not convince that the seriousness of an offence

with all its potential to corrode the foundations of a social order has been taken

intro account while formulating the classification of offences into bailable and

non-bailable.

The law of bails does not permit an accused to be enlarged on bail if it

appears to the court that he has committed an offence which would entail upon

him a punishment of either death or imprisonment for life. The basis of refusal of

bail in such cases can be construed as laying down a policy that in serious

misadventures on the part of an accused of the kind noted above, the stability of

the social order is likely to be affected. Hence his release on bail would be counter

productive to social interests.

In practice, the use of police power in dealing with non-bailable cases gets

scrutinized by a judicial mind particularly when judicial power is invoked for

obtaining warrants of arrest, search or seizure or attachment of property under

sections 80 and 81 of the code. The functional utility of such scrutiny is that it

acts as a check on the powers of the police.

Thus, a view of the legal and functional aspects of bail portrays a picture

of confusion. It cannot be anything else as the legislature itself has not been clear

as to how the component of administration of criminal justice be devised and

made to function as a system. The operational system would further show that the

unsatisfactory state of working of the bail system has been due to a lack of proper

conceptual understanding. Judicial decisions have contributed only marginally.

58

Courts have only emphasized one or the other aspect of the problem limited only

to the fact situations of a case.

As pointed out above, classification of offences as bailable and non-

bailable is not based on any just criterion. The criterion that should underlie the

categorization of non-bailable offences the serious nature of the offence itself.

The seriousness of crime can be measured in terms of :

(i) grave threats posed to the upkeep of law and order;

(ii) the interests of the society in the matters of public safety; and

(iii) the non disturbance of peace of the community at large.

The above factors may be intersecting each other. Some felonies

committed by individuals might be touching one or the other at the same time. It

may be a good way to determine the seriousness of the offence and may enable to

adopt a rational basis for categorizing an offence as non-bailable or bailable. The

present system of classification hardly conforms to reason when the legislative

seeks to place the offence of harbouring an offender accused of a capital offence

(section 212 IPC) or related offences under sections 213-21 6A of the Indian

Penal Code as bailable. It does not appear to be a sound policy to make deliberate

and provocative overt acts intended to commit breach of peace (section 504 IPC)

as bailable offences. The legislative choice of branding petty and technical thefts

by clerks or servants (sections 379-381 IPC) as non-bailable offences appears to

be irrelevant in the present context.

The operational mode of bail has also shown that amongst other defects

the system of bail suffers from a property oriented approach which seems to

proceed on the erroneous assumption that "the risk of monetary loss is the only

deterrent against fleeing from justice. This is indeed a major defect which has

been brought to the surface. The defects on account of impression and vagueness

of the term 'bail' and its concept have already been mentioned above. The place of

59

bail yet remains to be determined in the system of criminal justice administration

and its purpose has also to be outlined clearly. Policy consideration for grant of

bail or its refusal yet remains to be spelt out clearly and cogently both by the

legislature and by the courts. In sum, a lack of thought and direction in the

composition of a useful bail mechanism have been basic reason for an erratic

functioning of the entire administration of criminal justice. In order to streamline

the same, there is an imperative need to systemize and streamline the law relating

to bail.

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