How Do Judges Set Bail Amount in India?


As per Article 21 of the Constitution of India, every citizen of India has a fundamental right to freedom which states that, “No person shall be deprived of his life or personal liberty except according to procedure established by law”[1]. “Every accused in the country has a right to bail, by default, furthermore, if he has been charged with false allegations of a non-bailable offence, then too he is entitled to right to bail and also a good defence, by the court and there are certain factors which are to be taken into consideration by the court such as, nature or seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, reasonable apprehension of the witness being tampered with, tampering with evidence, the larger interests of the public or the state and similar other factors inter alia”[2]. “The purpose of bail is to free the person from lawful detention, by agreeing on the fact that, he shall present himself at a designated place and appeal to the authority and decision of a court of judicature at the time and place stated.”[3].

“Furthermore, if the criminal is refused his parole, that will mean that while he or she is considered innocent unless the conviction is proven beyond reasonable doubt, he or she is subject to psychological and physical withholding of life in prison the convicted person will be released on bail as the effects of the imprisonment are issued”[4]. “The accused is not able to make successful arguments to his defense and it is often critical that the accused in prison loses his work and sometimes the vulnerable members of his family suffer the responsibility of his detainment.”[5].

Circumstances in which the accused has to be released on bail

There are broadly 4 conditions or circumstances where, it is imperative on the part of the court to release the person accused on bail which are, discussed below:

I. Cases other than those of non-bailable offences:

“Section 436 of the Code of Criminal Procedure lays out that an arrested person who is not accused of any non-bailable offence has a right to be released on bail”[6]. “This section covers all cases of persons accused of bailable offences, cases of persons though not accused of any offences, but against whom security proceedings can be initiated, and all other cases of arrest and detention which are not in respect of any non-bailable offences”[7].

“It has been decided by the Rajasthan High Court in a landmark case that a person who is released under Section 436 by the police officer need not obtain release on fresh bail and bonds from the court inasmuch as the bail bonds submitted before the police officer are for the purposes of appearing before the court”[8]. After this judgment, the Allahabad High Court has ruled that a person who has been released on bail by the police should seek fresh bail from the court[9]. “A new Section 436A envisages, the release of the accused on bail on his own surety if he has served half of the maximum term prescribed for that offence in particular”[10]. “In no case a person is detained beyond the maximum period prescribed for the offence. If delay was however, caused by the accused the period may not be computed as aforesaid”[11].

II. Right to be released on bail if investigations are not completed within the prescribed number of days:

As per Section 57 of the Code, “whenever an accused is arrested and detained in custody by the police during investigation and it appears that the investigation cannot be completed within 24 hours, the accused person must be forwarded to Judicial Magistrate”[12]. As per the discretion of the Magistrate the term for which that particular accused shall be within the custody of the Magistrate shall not exceed 15 days. The Magistrate is in addition, not obligated to grant remand to the accused. “The police have to make out a case for that”[13].

In cases where the investigations cannot be completed within 24 hours and Judicial Magistrate is also not available, then, as per Section 167 (2A), “the arrested person can be produced before an Executive Magistrate who may order the detention of the accused person in custody for a term not more than 7 days”[14].

III. No reasonable grounds for believing the accused guilty of a non-bailable offence but sufficient grounds for further inquiry:

If the condition is as above, then the accused shall be released on bail as mentioned in Section 436. Another condition is mentioned in Section 437(2) which is, “there are sufficient grounds for further inquiry into the alleged guilt, the accused shall be released on bail, or at the discretion of such officer or court, on the execution by him of a bond without sureties for his appearance”[15].

IV. Trial not concluded within 60 days:

If the trial is not concluded within 60 days from the first date fixed for taking evidence in the case, such person shall, “if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing the Magistrate otherwise directs”[16]. In a landmark judgment it was held that, “merely because the accused was initially granted anticipatory bail for a lesser offence that would not entitle him to be granted regular bail under Section 439 when later he is found to be involved in a graver offence”[17].

General provisions Regarding Bond of accused and sureties

These are the general provisions which are provided in the CrPC to deduce the amount and other specificities of the bail bond and sureties of the accused:

V. Amount of bond and reduction thereof:

The amount of every bond given under Chapter 33 of the Code for Criminal Procedure, 1973 shall be fixed with due regard to the circumstances of the case and shall not be excessive. “The high Court or the Court of Session may direct that the bail required by a police officer or Magistrate be reduced”[18].

The character of the crime with which the accused is charged with shall not be the only characteristic taken in consideration while deciding the sum of the amount. It should be rather, an individualized decision which shall depend upon the financial circumstances of the accused. “The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge”[19].

VI. Conditions and execution of bond:

“When a person is to be released on bail, it completes the furnishing of a personal bond by such person and a bond by one or more sureties”[20]. “If ­­the time and place for the appearance of the accused is not mentioned in the bond at all, the bond is then vague and therefore void”[21].

The court is also given the right to remit any portion of the penalty imposed by it on forfeiture of the bond. But it should be ordered after recording the reasons for doing so. “Supreme Court has clarified that the duty of the surety is the production of accused for bail, in case of any change in the terms and conditions under which the accused is granted bail is not acceptable to the surety, he should communicate the same to the court failing which he will

[1] The Constitution of India 1950, a 21

[2] Ibid

[3] Black’s Law Dictionary (4th Edn) 177

[4] R.V. Kelkar, Criminal Procedure (6th edn, EBC 2018) 289

[5] Moti Ram v State of Madhya Pradesh, (1978) 4 SCC 47

[6] Code of Criminal Procedure s 436

[7] Ibid

[8] Monit Malhotra v State of Rajasthan (1991) Cri LJ 806 (Raj)

[9] Haji Mohd. Wasim v State of UP (1992) Cri LJ 1299 (All)

[10]  R.V. Kelkar, Criminal Procedure (6th edn, EBC 2018) 295

[11] Code of Criminal Procedure (Amendment) Act, 2005; Mohd. Shahabuddin v State of Bihar (2009) Cri LJ 3877 (Pat)

[12] The Code for Criminal Procedure 1973, s 57

[13] State of Gujarat v Swami Amar Jyoti Shyam (1989) Cri LJ 501 (Guj)

[14] The Code for Criminal Procedure 1973 s 167(2A)

[15] The Code for Criminal Procedure 1973 s 437(2)

[16] R.V. Kelkar, Criminal Procedure (6th edn, EBC 2018) 299

[17] Prahlad Singh Bhati v NCT, Delhi (2001) 4 SCC 280

[18] The Code for Criminal Procedure 1973, s 440

[19] Hussainara Khatoon v State of Bihar (1980) 1 SCC 81

[20] The Code for Criminal Procedure 1973, s 441

[21] Chhaganlal Kikabai v State of Gujarat (1969) Cri LJ 1164 (Guj)

This article is authored by Anurag Mohan Bhatnagar, student of B.A.LLB. (Hons.) at National Law University Odisha.

Also Read – Bail – Being Discriminative In It’s Nature

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