A Need For A Special Bail Law To Reform India's Bail System
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
A NEED FOR A SPECIAL BAIL LAW TO REFORM INDIA'S
BAIL SYSTEM
Simran Jaiswal, LL.M., School of Law, Justice and Governance Gautam Buddha University, Greater Noida. Dr. Rama Sharma, Assistant Professor School of Law, Justice and Governance Gautam Buddha University, Greater Noida.
ABSTRACT
The bail jurisprudence of India is disjointed, applied inconsistently, and frequently discriminatory, especially against the weak. This paper looks at the shortcomings in the current bail laws and makes the case for creating a new bail law. A rights-based, consistent, and standardized approach to bail is suggested, drawing on reports, case law, and comparable international standards. Keywords: Bail, Jail, Anticipatory Bail, Transit Bail, Default Bail.
INTRPDUCTION
According to a statement made by Mr. N V Ramana, the former Chief Justice of India, "The procedure is the punishment in our criminal justice system. " The process that results in the prolonged incarceration of those awaiting trial needs immediate attention, from hasty, indiscriminate arrests to difficulties in getting bail. There is a significant issue with 80% of the 6,10,000 inmates in the country still awaiting trial. The moment has arrived to look into the procedures that result in such lengthy incarceration without charge or trial. In India, it is easy to comprehend the drawbacks of criminal law and its important subset, bail law. Most Indian criminal laws are still holdovers from the colonial era.
It is imperative that we focus on reforming even after commemorating our 76th Independence Day as the world's largest democracy with an unwavering dedication to all human rights, especially the fundamental rights to life and liberty certain extremely important yet out-of-date aspects of Indian criminal law. 1 1 Salman Khurshid, Siddharth Luthra et al. , Taking Bail Seriously: The History of Bail Jurisprudence in India (2019).
The current system of bail in India is inadequate and inefficient to accomplish its purpose, reads the first final phrase of the 268th Report of the 21st Law Commission of India. 2 The two-judge Supreme Court of India bench, consisting of Hon. Mr. Justice Sanjay Kishan Kaul and Hon. Mr. Justice M M Sundresh, recently stated in a historical judgement Satender Kumar Antil Vs. CBI3 that there is an overwhelming and pressing need for reform or a revamp in the current bail regulations in India and even requested that the legislature take into account creating a new act to govern bail after the UK's current legislation. The Court provided comprehensive guidance on statutes pertaining to bail, emphasizing the necessity of distinct legislation and establishing payment deadlines applications.
According to the decision, "BAIL NOT JAIL" ought to be the norm and it is against the "presumption of innocence" principle to overcrowd jails with uncharged detainees.
RESEARCH OBJECTIVES
1. The main objective of this study is to draw attention to the issues with the proper
application of India's current bail regulations, which are not codified and rely on the judgment of judicial personnel.
2. To analyse the evolution and historical development of Indian bail law, highlighting its
shortcomings now.
3. To find and assess global models as possible standards for India's unique bail law,
particularly the bail regulations in nations like the UK, Australia, and Canada.
4. To examining the legislative, constitutional, and procedural elements that call for the
creation of a specific bail statute, highlighting the presumption of innocence, justice, and fundamental rights.
5. To provide suggestions for changes to the bail system, such as clauses allowing for
legal counsel, easing strict bail requirements, and processing bail requests quickly. 2 Law Commission of India, Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail (2017) https://lawcommissionofindia.nic.in/ (last visited on Jan. 02, 2025).
3 2022 SCC ONLINE SC 825.
RESEARCH QUESTION
1. What role does India's lack of a codified bail legislation have in the widespread use of
discretionary court decision-making, which results in different outcomes for bail applications in different jurisdictions?
2. What statutory, constitutional, and jurisprudential elements highlight the pressing need
for India to enact a specific bail law that strikes a balance between the state's interests in justice and crime prevention and the fundamental right to liberty?
3. Whether judicial officers have authority over the current rules and processes governing
bail laws in India?
4. How much can India learn from international norms, especially those found in nations
like the UK, Australia, and Canada, to create a thorough and equitable bail system that takes into account subtleties like the presumption of Pretrial detention avoidance, proportionality, and innocence?
RESEARCH METHODOLOGY
In this research paper the researcher used doctrinal research methodology. Laws, court rulings, and other pertinent legislative and constitutional structures shall be given priority when performing doctrinal study. The qualitative approach will mostly entail a thorough analysis of the current laws, statutory provisions, case law, government statistics and answers, government reports, reputable articles, and relevant legal literature. Using a methodical and analytical approach, this study technique will analyse court interpretations, legislative purpose, and legal concepts pertaining to the nation's common bail legislation
SIGNIFICANCE OF THE STUDY
This comprehensive study holds profound significance in the realm of legal scholarship and socio-legal reform. It underscores the dire need for a specialized Bail Act in India, pivotal in harmonizing the presumption of innocence with justice delivery. By identifying systemic lacunae, it aspires to rectify the prevalent discretionary practices, thereby ensuring equitable outcomes in bail applications across diverse demographics. The study’s comparative analysis with international models serves as a beacon, guiding India towards formulating a robust bail
framework. Its recommendations for legal representation, streamlined procedures, and fair bail conditions resonate with fundamental rights, fostering a more egalitarian and efficient criminal justice system.
DEFINITION OF BAIL
According to the Hon'ble Apex Court's judgement in the case of Vaman Narain Ghiya v. State of Rajasthan,4 "bail" is not precisely defined in the Code of Criminal Procedure or any other Indian law. Regarding the term "Bail's" origin, there are two schools of thought: the first is derived from the French word "Baillier," which means "to guard, to deliver, or to control," and the second is derived from the Latin word "Baiulare," which means "to bear a burden. "5 In the historical judgement Moti Ram v. State of Madhya Pradesh6, it was suggested that bail encompasses both the accused's release on a personal bond and that on a surety bond, which specifies that bail only refers to the release that is predicated on the individual's or based on financial guarantee on a third-party guarantee, during which the surety must be a person he knows and not a complete stranger.
According to Halsbury's Laws of England, granting bail has the effect of transferring the accused to the custody of his sureties, who are then required to bring him to his trial at a designated time, rather than releasing him from the custody of the law and place as determined by the Honourable Court. Any moment they want, the sureties can take their principle and release themselves by handing him over to the police, who will then place him in jail. 7 In Kalamata Trivedi v. State of West Bengal8, the Hon'ble Apex Court unequivocally held that the public interest and the accused's right to exercise their own freedom are two fundamental human values that can be connected through the use of bail. The accused's release is conditioned on the surety's pledge to show up for court to answer to charges.
HISTORICAL BACKGROUND OF BAIL
The history of bail reforms in criminal law starts with the protracted debates about bail rights in Europe, and especially in the UK. In England's antiquated criminal justice system, there is
4 (2009), 2 SCC 281.
5 Etymology Online https://www.etymonline.com/search?q=bail (last visited on Feb. 04, 2025).
6 (1979) 1 SCR 335.
7 Halsbury's Laws of England – LexisNexis https://www.lexisnexis.co.uk/products/halsburys-laws-ofengland.html (last visited on Feb. 04, 2025).
8 AIR 1979 SC 777.
no clause for the completion of an initial investigation prior to requesting a jury and awarding punitive damages to the defendant During the Norman era, these hardships and requests from the accused sparked a debate about the right to bail. According to Sir James Stephen, bail rights have been freely recognized by our early writers since the beginning of English law. Glanville Williams acknowledges the right to bail in a succinct and broad manner. The jury of presentment was established by the Clarendon Assize as the main opening procedure trials in 1166, and the declared certainty of the appeal of a felony was replaced with an accusation based on suspicion. The first step toward granting rights to people was the signing of the Magna Carta in 1215.
It was made very apparent that no one may be imprisoned or held in custody without first being evaluated by his peers and the country's legal system. The discussion later led to the adoption of securing release by royal writ, the Statute of Westminster I of 1275, the Bail Statute of 1554, and other measures. Among other things, England's bail jurisprudence ultimately came to the present-day Bail Act of 1976. 9 The cornerstone of bail law in post-independence India is Article 21 of the Indian Constitution,10 which states that only a "just, fair, and reasonable" judicial procedure may be used to restrict freedom, thereby guaranteeing both life and liberty. The same rule of procedure that permits arrest and detention also assures that an accused person can request bail through a wide range of procedures, from pre-arrest bail to statutory bail.
But in the event that he is caught for a crime for which bail is not available, the former, as envisioned by Section 438 of the Criminal Procedure Code (Cr. P. C. ), allows the accused to pray before a Sessions court or High Court for a directive to be freed on bail. On the other hand, Section 167 of the Cr. P. C. gives the person on trial the right to be released on bond if the investigation is not finished within sixty to ninety days, depending on how serious the offense was. 11 Essentially, since before independence, the Indian legal system's jurisprudence on bail has evolved significantly, mostly as a result of rulings made by national courts that have taken into account the shifting demands of the populace. Furthermore, in order to control the granting of bail in India, the Hon'ble Supreme Court has regularly established norms.
Furthermore, it is 9 Herber M D, Ancestral Trails: The Complete Guide to British Genealogy and Family History (Amazon 2005) https://www. amazon. com/History-Criminal-England-Making-British/dp/0415149525 (last visited on Feb 04, 2025).
10 The Constitution of India, 1950, a.21
11 M.R. A, “The Jurisprudence of Bail”, The Hindu (30 August 2022)
https://www.thehindu.com/news/national/the-jurisprudence-of-bail/article65825888.ece (last visited on Feb. 04, 2025).
evident that the country's bail regulations have drastically changed, from Emperor v. Hutchinson12 to the denial of bail till the prosecution of freedom fighter Bal Gangadhar Tilak in the Kesari Prosecution Case of 1908. The historic Sushila case, when the Supreme Court defined anticipatory bail as an insurance against arrest in the Gurbaksh Singh Sibbia v. State of Punjab13 case Aggarwal vs. State of NCT of Delhi,14 in which Satinder Kumar Antil vs. Central Bureau of Investigation15 was given anticipatory bail prior to the filing of a formal complaint.
INDIA’S BAIL AFFAIRS: PROVISIONS, PROCESS AND ISSUE
Bail rules in India are governed and made possible by the Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.)/The Bhartiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS). A "Bailable offence" is described as "an offence shown as Bailable in the First Schedule, or which is made Bailable by any other law which is enforced for the meanwhile" under Section 2(a) of the Cr.P.C.16/Section 2 (1)(a) of BNSS17 and non-bailable offence is "any other offence.".
BAIL AS A RIGHT
Bail is considered the standard in criminal justice, whereas incarcerating someone is considered an extraordinary remedy. However, the court officer's judgment plays a major role in deciding whether to grant bail. Bail may, nevertheless, be requested as an entitlement in a variety of situations where discretion is not available. The following scenarios are included in the examples: -
BAILABLE OFFENCE
Bailable offence has been defined in the Code of Criminal Procedure/ the Bhartiya Nagarik Suraksha Sanhita under section 2(a).18 When someone is accused of a crime that is punishable by bail under Section 2(a) of the Cr.P.C. Section 436 may be used to grant bail. This bail is
12 AIR 1931 ALL 356
13 AIR 1980 SC 1632.
14 (2020) 5 SCC 1.
15 2022 SCC OnLine SC 825.
16 The Code of Criminal Procedure, 1973, (Act No. 2 of 1974), s.2(a).
17 The Bhartiya Nagarik Suraksha Sanhita, 2023, (Act No. 46 of 2023), s.2(1)(a).
18 The Code of Criminal Procedure, 1973, (Act No. 2 of 1974), s.2(a).
claimed as a right. Section 50(2) of the Cr.P.C. further mandates that the police officer notify the individual who has been arrested for a crime that is eligible for bail that he will probably be freed on bond and that he is able to secure sureties on his behalf. A person who has been charged with a crime that is eligible for bail may be released on bond pending the outcome of their case.
SECTION 436A OF THE CODE OF CRIMINAL PROCEDURE
Section 436-A was added by the 2005 Amendment Act in response to the substantial number of prisoners awaiting trial. The twin goals of Section 436-A are to lessen excessive delays in the deliverance of justice and prison overcrowding. This means that under personal bond bail is available to trial convicts who have already completed more than half of their maximum sentence. It's imperative that defendants in court cases don't spend more time behind bars than what section 436-A of the Criminal Procedure Code permits. Defendants who are facing execution are exempt from this section, nonetheless. In Bhim Singh vs. Union of India19 the Apex Court has issued guidelines for the releasing of prisoners under section 436A.
DEFAULT BAIL
It is not expressly defined. Section 167(2)20 states that if the magistrate is persuaded of valid grounds, he may permit the accused individual to remain out of police custody for more than fifteen days. The magistrate may authorize the accused person's detention for a maximum of the following duration if the investigation concerns an offense punishable by life in prison or a minimum ten-year prison sentence. If the accused agrees to post bail within the allotted time of either sixty or ninety days, as applicable, he will be released on bond. This type of bond, also referred to as default bail, is an inalienable right of the accused.21
BAIL AS A RULE
We will now examine the conditions under which bail may be granted in non-bailable offences, where the court's discretion plays a vital role in deciding release. The main considerations are outlined below-
19 (2015) 13 SCC 605.
20 The Code of Criminal Procedure, 1973, (Act No. 2 of 1974), s.167(2).
21 Sanjay Dutt v. State, (1994) 5 SCC 410.
ANTICIPATORY BAIL
The Criminal Procedure Code, which had been in effect since 1898, did not include the concept of anticipatory bail. The provisions pertaining to anticipatory bail are covered in Section 438 of the Cr.P.C, 1973.22 Due to the recommendations of the 48th and 1st Law Commissions, it was introduced. Like bail, anticipation bail has no definition in the code. As stated by the Apex Court in the Balchand Jain case, anticipatory bail is "a bail in anticipation of arrest." Why does this matter? Could you please clarify your question? Does this mean that an individual is immune from arrest if anticipatory bail has been authorised? Regrettably, anticipatory bail is not an indication this. When a judge with the appropriate authority issues "anticipatory bail," this means instructing that the person should be freed on bail if they are arrested.23
TRANSIT BAIL
The Code of Criminal Procedure does not expressly talk about transit bail. In order to apply for ordinary bail, an accused person may request transit bail, also known as temporary bail or refuge from arrest, which would allow them to travel from their current domicile to the place where the offense was registered. It is frequently employed in conformity with reference to Criminal Procedure Code (Cr.P.C.) section 438. The Apex Court, in the case of Gautam Navlakha vs. State of NCT of Delhi24 and Romila Thapar vs. Union of India,25 has correctly stated that the idea of transit bail is no better than an albatross hung in the Cr.P.C.
BAIL IN SPECIAL LAWS AND LOCAL LAWS
As per the latest data available, 48,57,230 individuals were detained for offenses under Special and Local Laws in 2015; 3,20,392 of them were released on bond, accounting for 6.6% of the total; and 74,139 of them, or 1.5% of the total, were still in custody. In comparison to convicted individuals, very few persons are released on bond as a result. The current occupancy rate of 114.4% of Indian prisons justifies keeping offenders jailed before trial. It is a legitimate human rights violation to detain an accused person for trial without holding a trial. Regarding the Undertrial Prisoners of NDPS Act, the Supreme Court pointed
22 The Code of Criminal Procedure, 1973, (Act No. 2 of 1974), s.438.
23 Balchand Jain v State of MP, (1976) 4 SCC 572.
24 (2018) 10 SCC 753.
25 2018 SCC Online Del 13372.
out that bail under special legislation, such the NDPS Act, is extremely contradictory, raising concerns about whether the rights of the accused are being violated under Article 21. The courts have frequently suggested and decided that certain cases ought to be tried as soon as possible. However, there isn't much evidence that these cases are settled faster than the rest. Many people have been incarcerated for years due to the special laws created for these offenses.26 Several special laws contain provisions that override the general bail procedures under the Criminal Procedure Code (Cr.P.C.). Key examples include:
1. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which
imposes stringent conditions on granting bail for offences involving commercial quantities.27
2. Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967 (UAPA), which
makes securing bail extremely difficult, even in cases where the law is allegedly misused and over 95% of cases remain at the trial stage.28
3. Section 12(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015, which
provides guidelines for bail in cases involving children in conflict with law.
4. Section 212(6) of the Companies Act, 2013, which limits bail in serious fraud-related
offences investigated by the Serious Fraud Investigation Office (SFIO).
5. Section 45(1) of the Prevention of Money Laundering Act, 2002 (PMLA), which
imposes a twin condition for bail, making it more restrictive than under regular criminal law.
CANCELLATION OF BAIL
Bail may be cancelled under Sections 437(5) and 439 of the Criminal Procedure Code, 1973. Section 439 empowers the High Courts and Sessions Courts to set aside any bail granted under Chapter XXXIII, regardless of the nature of the offence, if the accused breaches bail conditions.
26 Ministry of Home Affairs, National Crime Records Bureau, Crime in India, 2016, available at
https://ncrb.gov.in/sites/default/files/Crime%2520in%2520India%2520%25202016%2520Complete%2520PDF %2520291117.pdf (last visited on Feb. 08, 2025).
27 The Narcotic Drugs and Psychotropic Substances Act, 1985, (Act 61 of 1985), s. 37.
28 The Unlawful Activities (Prevention) Act, 1967, (Act 37 of 1967), s. 43(D)(5).
Conversely, Section 437(5) allows the very court that initially granted bail to revoke it. Additionally, the prosecution can seek cancellation of bail granted under Section 167(2) in cases where the investigation remains incomplete within the prescribed 60-day period after the charge sheet is filed. Such a request is typically made when there is credible apprehension that the accused has committed a serious, non-bailable offence, thereby justifying their re-arrest and detention. The Hon’ble Supreme Court of India, in Abdul Basit v. Mohd. Abdul Kadir Chaudhary29, laid down the guiding principles for bail cancellation-
1. The likelihood of the accused fleeing the country increases if:
2. They misuse the liberty granted by engaging in similar unlawful acts;
3. They obstruct or hinder the ongoing investigation;
4. They attempt to manipulate evidence or influence witnesses;
5. They issue threats to witnesses;
6. They abscond or go into hiding;
7. They make themselves inaccessible or untraceable to the investigating authorities.
BAIL OR JAIL: RECENT TRENDS & JUDICIAL DISCRETION
The inability of individuals from economically disadvantaged backgrounds to avail themselves of bail provisions and secure their release, along with challenges in exercising legal rights, has impeded the proper enforcement of the law. Courts have come under considerable criticism for their approach to handling bail applications and determining bail amounts. Instead of relying solely on judicial discretion, bail decisions should be based on clear, established principles. BAIL OR JAIL?
Justice Krishna Iyer raised the critical question of "Bail or jail" during both the pre-trial and post-conviction stages. He observed that the Code remains unclear on this issue, with courts often remaining silent, even when the order involves custodial detention. The real issue is one
29 (2014) 10 SCC 754.
of liberty, justice, public safety, and the financial burden on the state. These factors highlight the need for a well-developed bail law that aligns with a socially aware and responsive legal system. During the 1970s and 1980s, bail jurisprudence largely centred around cases involving hurt and injury, with a particular focus on individuals charged with such crimes, most of whom were from lower socioeconomic strata. However, as economic fraud and crimes grew in prevalence, both judicial and legislative perspectives evolved. By the 1990s, legal precedents began to emerge that placed limitations on the right to bail, especially in cases involving economic offences.30
JUDICIAL DISCRETION
In Dipak Subhash Chandra Mehta v. CBI31, the Supreme Court cautioned that courts must exercise their discretion carefully and should not treat the granting of bail as a routine matter. Although a comprehensive evaluation of all evidence and documents may not be necessary at the bail stage, it is essential for the court to provide well-reasoned justifications, especially in cases involving grave or serious offences. Judicial discretion in bail matters is not arbitrary but rooted in a thoughtful and principled framework. Especially in cases involving serious offences, the exercise of such discretion must carefully weigh the competing interests of personal liberty, the pursuit of justice, societal safety, and the financial implications for the state.
32 It has also been observed that safeguarding public justice forms a vital part of a comprehensive bail system, and developing a well-defined framework of bail jurisprudence is essential for a justice system that reflects societal values. In Rajesh Ranjan Yadav v. CBI33, the Supreme Court underscored the significance of Article 21 of the Constitution, highlighting the need to balance individual liberty with the broader interests of society. In Satender Kumar Antil v. CBI34, the Hon’ble Supreme Court of India, while urging the Legislature to consider enacting a dedicated Bail Act to bring uniformity in the bail process, classified offences into four categories and issued several guidelines for courts to follow when deciding bail applications. The objective was to ease the burden on prisons overcrowded with undertrial detainees.
The Supreme Court noted with concern that police authorities have been disregarding judicial directives laid down in key rulings such as Arnesh Kumar v. State of
30 Satender Kumar Antil v CBI, 2022 SCC Online SC 825.
31 (2012) 4 SCC 134.
32 Masroor v. State of Uttar Pradesh, (2009) 14 SCC 286.
33 AIR 2007 SC 451.
34 2022 SCC ONLINE SC 825
Bihar35, which addresses unlawful arrests, and Shreya Singhal v. Union of India36, which declared Section 66A of the IT Act, 2000 unconstitutional. Despite these clear judicial pronouncements, arrests continue to be made arbitrarily, and cases are still being filed under repealed provisions.
COMPARING THE LAW OF BAIL IN CANADA AND INDIA
In democratic and republican systems grounded in a written constitution and the rule of law, there has long been a concern over the way accused individuals are depicted by the media and the consequences they suffer as a result of such portrayals.
THE LAW OF BAIL IN CANADA
In Canada, bail laws are governed by federal legislation and are intended to be applied consistently across all ten provinces and three territories that make up the federation. Each province has its own Court of Appeal, which functions as the highest court at the provincial level. Although the Supreme Court of Canada can overrule decisions made by these appellate courts, such rulings remain binding on lower courts within the same province and serve as persuasive legal authority in other provinces. Provincial Courts, which form the base of the judicial system, are responsible for conducting bail hearings, preliminary examinations, and handling minor civil and criminal cases.
Superior Courts, on the other hand, are typically the courts of first instance for more serious criminal matters and have exclusive authority to conduct bail hearings for offences listed under Section 469 of the Criminal Code, such as murder. 37 The Criminal Code of Canada's provisions govern bail, which is wholly a product of statute in Canada. Before Canada was legally founded in 1867, its bail laws were very similar to those in England. The main goal of the Canadian bail system, like that of British law, was to guarantee the accused's attendance at trial. The probability that the accused will show up for trial was the primary consideration in determining whether to grant or deny bail under Canadian legal principles (Criminal Code, R. S. C. 1985, c. C-46). A British law passed in 1848, the Indictable Offenses Act, influenced bail practices in both Canada and the UK for many years.
The regulations governing bail, which is entirely a product of Canadian statute, are found in
35 (2014) 8 SCC 273.
36 (2013) 12 SCC 73.
37 R v Antic, (2017) 1 SCR 509.
the Criminal Code of Canada. Before being formally established in 1867, Canada's bail rules were remarkably similar to those of England. Like British law, the primary objective of Canada's bail system was to ensure that the accused would appear at trial. The main factor in deciding whether to grant or refuse bail under Canadian legal principles was the likelihood that the accused will appear for trial (Criminal Code, R.S.C. 1985, c. C-46). For many years, the Indictable Offenses Act, a British law issued in 1848, shaped bail policies in both Canada and the UK. It is clear that the primary objectives of discretionary bail laws in both India and Canada are to:
1. Ensure the accused appears for trial and does not evade justice,
2. Prevent the accused from obstructing the investigation (such as tampering with
evidence, influencing witnesses, or interfering in the process), and
3. Uphold and reinforce public trust in the criminal justice system.38
CONCLUSION AND SUGGESTION
Based on the data analysis, the jurisprudential insights drawn from the aforementioned case laws, and the conceptual inferences discussed earlier, it becomes evident that the hypothesis holds true. There is an unmistakable and pressing need to overhaul the current bail framework in India. A well-structured and codified Special Bail Act is essential to ensure that the true purpose of bail is upheld not as a punitive or preventive measure, but solely as a mechanism to guarantee the presence of the accused during trial proceedings. In response to the major issues it is currently facing, the law has changed. Courts' authority has been limited in order to address the problem of judicial discretion in bail issues. The criteria that necessitate the use of discretion have also been listed by the judiciary.
Bail must essentially be issued following an evaluation of four distinct factors: victim, offender, offense, and justice. • According to this suggestion, giving bail ought to be the default option in every circumstance. For this, Section 12 of the Juvenile Justice Act of 2015 can serve as a model. In addition to eliminating the distinction between offenses that are eligible for
38 The Criminal Code of Canada, s. 503.
bail and those that are not, Section 12's design was influenced by political, social, legal, and historical considerations. It has been suggested that, with the right modifications, Section 12(1) of the Juvenile Justice Act could serve as a model statute for crimes committed by adults as well. • The Code of Criminal Procedure has drawn criticism for its ambiguous and shoddy classification of offenses that qualify for bail vs those that do not. All accused people should be released on bond by default, according to recommended practice. This presumption should only be contested in extraordinary circumstances and with wellsupported arguments. • In criminal cases, the magistrate or Court of Sessions is the first court the accused must appear before in order to obtain bail because that is where the initial hearing takes place.
The High Court hears cases that are appealed to the Indian Supreme Court only by people who believe that the decisions made by these institutions have mistreated them. • The police are responsible for reporting crimes and apprehending offenders. They have to understand that the arrest is just intended to ensure an open investigation and not to unjustly imprison the suspect until trial. For less serious offenses or offenses other than murder, culpable homicide, dacoity, etc. , a procedure might be added to the law to get the Superintendent of Police's approval before making an arrest. For the magistrate to conduct a formal investigation, the reasons for the arrest must also be documented in writing. • Disciplinary action must be taken against anyone found to be in violation of the guiding principles established by the Supreme Court of India, the Magistrate, or the Court of Sessions.
• The Canadian bail law can be making a model. There are incredibly significant lessons to be learned from Canadian bail legislation that also warrant careful consideration in Indian legal circles. • The procedure for getting bail is delineated in the Bail Act of 1976 in the United Kingdom.
REFERENCES
1. Salman Khurshid, Siddharth Luthra et al., Taking Bail Seriously: The History of Bail
Jurisprudence in India (2019).
2. Law Commission of India, Amendments to Criminal Procedure Code, 1973 –
Provisions Relating to Bail (2017) https://lawcommissionofindia.nic.in/ (last visited on Jan. 02, 2025).
3. 2022 SCC ONLINE SC 825.
4. (2009), 2 SCC 281.
5. Etymology Online https://www.etymonline.com/search?q=bail (last visited on Feb. 04,
2025).
6. (1979) 1 SCR 335.
7. Halsbury's Laws of England – LexisNexis
https://www.lexisnexis.co.uk/products/halsburys-laws-of-england.html (last visited on Feb. 04, 2025).
8. AIR 1979 SC 777.
9. Herber M D, Ancestral Trails: The Complete Guide to British Genealogy and Family
History (Amazon 2005) https://www.amazon.com/History-Criminal-England-Making- British/dp/0415149525 (last visited on Feb 04, 2025).
10. The Constitution of India, 1950, a.21
11. M.R. A, “The Jurisprudence of Bail”, The Hindu (30 August 2022)
https://www.thehindu.com/news/national/the-jurisprudence-ofbail/article65825888.ece (last visited on Feb. 04, 2025).
12. AIR 1931 ALL 356
13. AIR 1980 SC 1632.
14. (2020) 5 SCC 1.
15. 2022 SCC Online SC 825.
16. The Code of Criminal Procedure, 1973, (Act No. 2 of 1974), s.2(a).
17. The Bhartiya Nagarik Suraksha Sanhita, 2023, (Act No. 46 of 2023), s.2(1)(a).
18. The Code of Criminal Procedure, 1973, (Act No. 2 of 1974), s.2(a).
19. (2015) 13 SCC 605.
20. The Code of Criminal Procedure, 1973, (Act No. 2 of 1974), s.167(2).
21. Sanjay Dutt v. State, (1994) 5 SCC 410.
22. The Code of Criminal Procedure, 1973, (Act No. 2 of 1974), s.438.
23. Balchand Jain v State of MP, (1976) 4 SCC 572.
24. (2018) 10 SCC 753.
25. 2018 SCC Online Del 13372.
26. Ministry of Home Affairs, National Crime Records Bureau, Crime in India, 2016,
available at https://ncrb.gov.in/sites/default/files/Crime%2520in%2520India%2520%25202016%2 520Complete%2520PDF%2520291117.pdf (last visited on Feb. 08, 2025).
27. The Narcotic Drugs and Psychotropic Substances Act, 1985, (Act 61 of 1985), s. 37.
28. The Unlawful Activities (Prevention) Act, 1967, (Act 37 of 1967), s. 43(D)(5).
29. (2014) 10 SCC 754.
30. Satender Kumar Antil v CBI, 2022 SCC Online SC 825.
31. LIVE LAW, “Magistrates Remand Accused Mechanically in Most Cases: Ex-CJI UU
Lalit” (November 22, 2022), available at https://www.livelaw.in/top-stories/former-cjiuu-lalit-justice-kt-desai-memorial-lecture-bombay-hc-214678 (last visited on Apr. 10, 2025).
32. (2012) 4 SCC 134.
33. Masroor v. State of Uttar Pradesh, (2009) 14 SCC 286.
34. AIR 2007 SC 451.
35. 2022 SCC ONLINE SC 825
36. (2014) 8 SCC 273.
37. R v Antic, (2017) 1 SCR 509.
38. The Criminal Code of Canada, s. 503.
Indian Journal of Law and Legal Research Volume VII Issue II | ISSN: 2582-8878
Indian Journal of Law and Legal Research Volume VII Issue II | ISSN: 2582-8878