Bail- but only for the rich


The Indian bail system is afflicted with the problem of inequality where the people with deep pockets get to purchase their freedom while the destitute class is jailed as it fails the means to raise the money. This raises the question if the ability or capacity to pay can be regarded as the sole mean of granting freedom and whether such a practice should be followed?

The dark reality and the negative effect of this system was shown in the case of Rudal Shah v. State of Bihar[1], which showcases the worst example of apathy of the State executives towards the plight of indigent persons. In spite acquittal of all charges by the competent criminal court on 3.6.1968, he was released from jail only after 14 years, i.e., on 16 September 1982.

Concept of bail in India

Sections 440 to 450 of Cr.P.C. set out conditions for releasing someone who is otherwise determined to be eligible for bail. The notion behind these provisions is that it requires the person accused of an offence to provide monetary assurance that he will appear before the court as and when required and observe other bail conditions, or forfeit the assurance amount.

Thus, before being released, a person who is granted bail would be required to execute a bond agreeing to adhere to the conditions of bail[2].This bond is for a certain sum of money as set by the Court, if the person defaults on a bail condition, the Court will forfeit the bond and require the person to pay the money as penalty[3] . On failure to do so, the penalty will be recovered in a similar manner as a fine imposed by the Court. If the penalty amount cannot be recovered then the person shall be liable for a civil imprisonment upto 6 months[4]. At this stage, it is required to be noted that failure to appear, without sufficient cause, before the court on the date designated as part of the bail condition, is an offence under section 229A, IPC.

In addition to the monetary requirement, it also requires that the person should also provide a surety to stand as an assurance that the accused person will follow the conditions of the bail otherwise the surety amount will be forfeited.

Criticism of the bail process

Prejudicial to the interest of destitute and indigent members of the society

In report titled Processual Justice to the people[5] by the experts on Legal Aid and headed by Justice Krishna Iyer, he observed that the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their financial inability while the wealthier persons, would be able to secure their freedom because they can afford to furnish bail.[6]

The report categorically stated that the evil of the bail system is that either the impoverished have to fall back on touts and professional sureties for providing bail or suffer pre-trial detention. Both these consequences are fraught with great hardship to the poor. On one hand they are fleeced by touts and professional sureties and sometimes even have to incur debts to make payments to them for securing their release; on the other hand they are deprived of their liberty without trial and conviction; all this leads to grave consequences.

Property based nature of bail system

The Court commented on the property based nature of the bail system in the case of Hussainara Khatoon[7]  and stated that it is based upon the erroneous assumption that the risk of monetary loss is the only deterrent against fleeing from justice. The Court highlighted that even where an person accused of an offence is to be released on personal bond, the law requires the person to be placed under financial obligation to appear in court through the execution of a bond to that effect.[8] Moreover, the courts mechanically insist that the accused person should produce sureties who would furnish bail for him and, these sureties must again establish their solvency to be able to pay the amount of bail in case such accused fails to appear to answer the charge.

Alternatives to the money bail system

Conditional release and leniency in conditions

It is stated that a liberal policy of conditions for release without monetary sureties or financial security and release on one’s own recognizance with punishment provided for violation will go a long way to reform the bail system and help the weaker and poorer sections of the community to get equal justice under the law. Conditional release may take the form of entrusting the person accused of an offence to the care of their relatives or in supervision. The court or the authority granting bail may have to use the discretion judiciously. When the accused person is unable to find sureties, there will be no point in insisting on bail with sureties, as it will only compel them to be in custody with the consequent handicaps in providing their defense.[9]

Expanding the ambit of Bailable offences

Enlarging the category of bailable offences as classified in Cr.P.C., and insisting on expeditious completion of pre-trial procedures that might lead to minimizing the period of confinement. It has also noted that a person accused of an offence would need access to a lawyer to make an application for bail.[10] As per law, it is required to ensure that legal aid is provided but, in practice, this occurs only after the charge-sheet is filed. Therefore, access to lawyers in the crucial pre-charging stages is often limited for those who cannot afford a lawyer, and who are likely therefore to also not be able to afford bail.

Under trial Prisoners

In the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners [11] the Supreme Court held that unduly long periods of under-trial incarceration violates Articles 14 and 21 of the Constitution.

An amendment was made in 2005, by which s. 436A was added to the Code. This section provides that if the accused person has undergone detention for half the maximum period of imprisonment specified for the offence that he has been charged with, such an accused shall be released by the court on personal bond with or without sureties. Persons charged with offences punishable with death do not get the benefit of this provision. The proviso to the section states that the court, upon hearing the public prosecutor, may order the continued detention of the accused person for a term longer than half of the said period, or release the person accused of an offence on bail instead of personal bond with or without sureties. The court shall record reasons for this in writing. The second proviso to the section states that no accused person shall be detained for a period longer than the maximum period of imprisonment for the offence.

For successful implementation of this provision, the Supreme Court of India laid down guidelines in Bhim Singh v. Union of India[12]. It directed the jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge to hold one sitting per week in each jail/prison for two months from October 1, 2014 to identify under-trials eligible for bail under sec. 436-A of Cr.P.C and to pass an appropriate order with respect to sec. 436-A of Cr.P.C in the jail itself. It directed the Jail Superintendent of each jail/prison to facilitate the process.

Moreover in the case of R.D. Upadhyay v. State of Andhra Pradesh[13] the Supreme Court had held that under-trials charged with attempt to murder should be released on bail if their case has been pending for 2 years or more; and that persons charged with comparatively minor offences like theft, cheating, etc., should be released if they have been in prison for more than a year. The Court added two important instructions: (1) the trial courts were obligated to consider such persons for bail. The court clarified that it was not necessary for under-trials to move an application for bail. (2) The Court directed that where an under-trial is not in a position to furnish sureties, the court should examine whether the person can be released on furnishing a personal bond. In the current system of money bail and release under sec. 436A Cr.P.C., after serving half of the maximum sentence, it must be considered whether, given the duration of maximum imprisonment in many offences, release after serving half the duration serves the cause of justice.


Hence, there is a dire need to a reform the current bail process as it not only prejudicial to the destitute as well as cause a problem on the state in form of under trial prisoners, over congestion in jails and a new alternatives should be suggested which can be used as a deterrent for assuring the compliance of the bailed offender instead of the current money based system.

Edited by Sakshi Raje


[1] AIR 1983 SC 1086.

[2] Section 441 Cr.P.C

[3] Section 446 Cr.P.C.

[4] Id.

[5] Report of the Expert Committee on Legal Aid: Processual Justice to the People (1973)
(Chairperson: Justice VR Krishna Iyer), Government of India, Ministry of Law Justice

and Company Affairs.

[6] 154th Report by Fourteenth Law Commission of India, The Code of Criminal Procedure,
1973 (1996), Vol. I & II.

[7] In Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1979 SC 1360.

[8] Section 441, Cr.P.C

[9] Government of Gujarat, Report of the Legal Aid Committee (1971)(Chairperson: PN
Bhagwati, the then Chief of Justice of the Gujarat High Court); Government of India,
Ministry of Law Justice and Company Affairs.

[10]Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349. Kerr v. California, 374 U.S. 23 (1963). See also Brinegar v. United States,338 U. S. 160,338 U. S. 175-176 (1949), quoting from Carroll v. United States, 267 U. S. 132, 267 U. S.162 (1925).

[11] (1994) 6 SCC 731.

[12] (2015) 13 SCC 603.

[13] 1996 (4) SCALE 11.

Anubhuti Rastogi
Hi! I am Anubhuti Rastogi, pursuing B.A.LLB at NUSRL, Ranchi. I have always been an inquisitive person and not just in the field of law but particularly in other subjects too like history, the sciences of society etc. the same of which has really acclimated my researching skills and has always motivated me to never run out of the Knowledge lust. Other than that I am a good listener, executor and really good in working in teams. I am particularly a patient person which really enhances my crisis management skills. I hope and will try to be of utmost help to you.