Bail – Being Discriminative In It’s Nature

The concept of bail, that’s a crucial part of the criminal jurisprudence, also suffers from the above stated drawbacks. Bail is extensively used to consult the discharge of a person charged with an offence, on his supplying a protection so that it will make sure his presence earlier than the courtroom or any other authority on every occasion required. What is contemplated by using bail is to “procure the discharge of a person from legal custody, with the aid of project that he/she shall seem at the time and area distinctive and put up him/herself to the jurisdiction and judgment of the court docket.”

History of Bail:-

The concept of bail can be traced back to 399 BC, whilst Plato tried to create a bond for the release of Socrates. The current bail device evolved from a chain of laws originating in the middle a long time in England.

Read – Plea Bargaining in the Indian Criminal Justice System.

It has been said that the elements to be taken into consideration in determining the amount of bail are:
(1) capability of the accused to offer bail,
(2) nature of offence,
(3) penalty for the offence charged,
(4) man or woman and popularity of the accused,
(5) health of the accused,
(6) individual and electricity of the proof,
(7) possibility of the accused appearing at trial,
(8) forfeiture of different bonds, and
(9) whether the accused turned into a fugitive from justice when arrested.

Judicial Trend:-

A review of the following cases highlights the adverse circumstance of the negative with regard to the unjust bail machine in India. In State of Rajasthan v Balchand, the accused turned into convicted by way of the trial courtroom. When he went on appeal the High Court, it acquitted him. The State went on enchantment to the Hon’ble Supreme Court below Art. 136 of the Constitution via a unique depart petition. The accused was directed to surrender by the court. He then filed for bail. It becomes then for the primary time that Justice Krishna Iyer raised his voice towards this unfair gadget of bail administration. He stated that although at the same time as the system of pecuniary bail has a culture in the back of it, a time for rethinking has come. It may be that during most instances a mission might serve the reason.

In Moti Ram and Ors. v State of M.P., the accused who become a terrible mason was convicted. The apex court docket had surpassed a sketchy order, referring it to the Chief Judicial Magistrate to amplify him on bail, without making any specs as to sureties, bonds and many others. The CJM assumed complete authority on the matter and fixed Rs. 10,000 as surety and bond and similarly refused to allow his brother to become a surety as his belongings turned into within the adjacent village. MR went on enchantment another time to the apex court and Justice Krishna Iyer condemned the act of the CJM, and stated that the judges need to be more inclined in the direction of bail and now not jail.

In Maneka Gandhi v Union of India, Justice Krishna Iyer yet again spoke in opposition to the unfair machine of bail that turned into winning in India. No definition of bail has been given inside the code, despite the fact that the offences are classified as bailable and non-bailable. Further Justice P.N.Bhagwati additionally spoke approximately how unfair and discriminatory the bail system is while checked out from the monetary criteria of someone this discrimination arises even if the quantity of bail constant via the magistrates isn’t excessive for some, but a huge majority of folks who are delivered before the courts in crook cases are so negative that they would discover it difficult to provide bail although it’s a small quantity.

Read- Dying Declaration – Sec 32(1) of Indian Evidence Act, 1872.

Further, in Hussainara Khatoon and others v Home Sec, State of Bihar, the Court laid down the ratio that after the person is in jail for a duration longer than the sentence he is chargeable for then he has to be launched.


A perusal of the above instances highlights the robust anti-bad bias of the Indian crook justice system. Even though the courts in some cases have attempted to intrude and still have laid down sure tips to be observed however unfortunately not anything has been accomplished about it. There is also a sturdy need felt for a whole overview of the bail machine preserving in thoughts the socio-monetary condition of most of the people of our populace. While granting bail the courtroom have to also have a look at the socio-financial plight of the accused and need to even have a compassionate mindset in the direction of them. A proper scrutiny may be carried out to decide whether or not the accused has his roots within the network which would deter him from fleeing from the courtroom.

Aayushi Bana

Aayushi Bana, Content Writer, Law Corner Student of 7th Semester, Jamia Millia Islamia, New Delhi

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