The document discusses the classification of offenses in the Indian criminal justice system as either bailable or non-bailable. It defines what constitutes a bailable versus a non-bailable offense and notes that the classification is based on the gravity of the offense and level of associated punishment. For bailable offenses, an accused has the right to be released on bail whereas for non-bailable offenses bail is at the discretion of the court. The document outlines the different bail provisions and procedures for bailable versus non-bailable offenses as defined in the Code of Criminal Procedure.

1. 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).

2. 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 : 1958
SCR 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).

3. 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).

4. 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).

5. 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).

6. 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. Bal
Chand AIR 1997 SC 2447, 2448.
11
K.K. Warrior Vs. State of Kerala (1964) KLT 597, State Vs. Capt. Jagbir Singh Supra
Note 4.

7. 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 offences
prescribing death or one of the alternate sentences.

8. 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.

9. 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).

10. 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).

11. 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).

12. 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 Mys
71 : (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).

13. 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).

14. 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.

15. 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.

16. 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.

17. 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

18. 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.

19. 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.

20. 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.

21. 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 best
guarantee 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 many
processual laws is an urgent desideratum; and the judiciary will do
well to remember that the geo-legal frontier of the Central Codes
cannot be disfigured by cartographic dissection in the name of
language 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 offences
enumerated as bailable or non-bailable offences, so far as the old Code and the
new 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).

22. 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.

23. 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.

24. 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.

25. 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

26. 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.

27. 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

28. 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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