Supreme Court on bail and pre-trial incarceration
Context
The Supreme Court of India, while granting bail in a CBI-registered bank fraud case involving Dewan Housing Finance Limited (DHFL), strongly criticised the practice of denying bail to undertrials merely to give them a “taste of imprisonment as a lesson”.
Key observations of the Supreme Court
Presumption of innocence continues until conviction; it does not vanish because:
the offence is termed “serious”, or
the accused is booked under a stringent law.
Pre-trial incarceration cannot become punishment without adjudication.
Courts are constitutionally bound to intervene when custody becomes:
disproportionate
arbitrary
excessive
The principle “bail is the rule and jail is the exception” is central to criminal jurisprudence.
Long incarceration combined with delay in trial ordinarily obligates courts to grant bail.
Grounds on which bail may be denied (as per Court)
Bail may be restricted only when there is:
clear threat to society
possibility of influencing witnesses or investigation
likelihood of absconding (flight risk)
Mere invocation of a stringent law is not sufficient.
Constitutional and legal basis
Article 21: Right to life and personal liberty
Denial of bail must follow a just, fair and reasonable procedure
Burden lies on the prosecution to justify continued detention of an undertrial
Bail: Concept and provisions
What is bail?
Bail is the temporary release of an accused person from custody, pending trial or appeal, on the condition of appearance before the court.
Bail provisions under CrPC, 1973
Section 436 – Bailable offences
Bail is a matter of right
Police or court has no discretion to deny bail
Section 437 – Non-bailable offences
Bail is discretionary
Magistrate considers:
gravity of offence
likelihood of absconding
possibility of witness tampering
Section 439 – Powers of higher courts
High Court and Court of Session have wide powers
Can impose, modify, or relax bail conditions
Types of bail
Regular bail
Granted after arrest
Sections 436, 437, 439 CrPC
Anticipatory bail (Section 438 CrPC)
Granted before arrest
Protects against arbitrary or motivated arrest
Conditional and discretionary
Interim bail
Temporary bail for a short period
Granted pending final decision on bail application
Default bail (Statutory bail)
Granted when investigation is not completed within:
60 days (ordinary offences)
90 days (serious offences)
Considered an indefeasible right flowing from Article 21
Medical / humanitarian bail
Granted on serious illness or humanitarian grounds
Judicial principles to remember
Bail is a qualified right, not automatic
Process itself cannot become punishment
Long incarceration + delayed trial = strong ground for bail
Presumption of innocence applies even at bail stage
Supreme Court case laws on bail
1. Hussainara Khatoon vs State of Bihar (1979)
Principle laid down
Speedy trial is a fundamental right under Article 21
Prolonged detention of undertrials without trial is unconstitutional
2. Gudikanti Narasimhulu vs Public Prosecutor (1978)
Principle laid down
Bail decisions must balance:
individual liberty
societal interests
“Bail or jail” must be decided with human rights perspective
3. State of Rajasthan vs Balchand (1977)
Principle laid down
Coined the famous doctrine:
“Bail is the rule and jail is the exception”
4. Sanjay Chandra vs CBI (2012)
Principle laid down
Gravity of offence alone cannot justify denial of bail
Pre-trial detention should not become punishment
5. Arnesh Kumar vs State of Bihar (2014)
Principle laid down
Arrest is not mandatory in all offences
Police must justify necessity of arrest
6. Arnab Manoranjan Goswami vs State of Maharashtra (2020)
Principle laid down
Courts must act as guardians of personal liberty
Failure to grant bail when liberty is at stake is a constitutional failure
7. Union of India vs K.A. Najeeb (2021)
Principle laid down
Even under stringent laws (like UAPA), bail can be granted if:
trial is unlikely to conclude soon
prolonged incarceration violates Article 21
8. Satender Kumar Antil vs CBI (2022)
Principle laid down
Laid down structured guidelines on arrest and bail
Emphasised:
summons instead of arrest
bail for non-violent and economic offences
Bail vs Parole vs Furlough vs Probation
Feature | Bail | Parole | Furlough | Probation |
Stage of criminal process | Before conviction | After conviction | After conviction | After conviction |
Status of person | Undertrial | Convict | Convict | Convict |
Nature | Judicial release | Temporary conditional release | Periodic conditional release | Suspension of sentence |
Governing law | Code of Criminal Procedure, 1973 | State Prison Rules | State Prison Rules | Probation of Offenders Act, 1958 |
Authority granting | Courts | Executive / Prison authorities | Prison authorities | Courts |
Objective | Protect personal liberty and presumption of innocence | Humanitarian grounds | Reform and social reintegration | Reformation instead of imprisonment |
Is it a right? | Right in bailable offences; discretionary in non-bailable | Not a right; discretionary | Not a right; discretionary | Discretion of court |
Grounds | Flight risk, witness tampering, gravity of offence | Illness, death, marriage, emergency | Long imprisonment, good conduct | First-time / minor offenders |
Duration | Till end of trial or appeal | Short, fixed duration | Periodic, comparatively longer | Fixed probation period |
Effect on sentence | Sentence not commenced | Sentence continues to run | Sentence continues to run | Sentence suspended |
Nature of power | Judicial | Executive | Executive | Judicial |
Prelims trap | Bail applies only to undertrials | Parole is not routine | Furlough is not emergency-based | Probation is not bail |
Prelims Practice MCQs
Q. Consider the following statements:
Bail is applicable only before conviction.
Parole is granted by courts on humanitarian grounds.
Furlough is intended to help in the social reintegration of convicts.
Which of the statements given above are correct?
(a) 1 and 2 only
(b) 1 and 3 only
(c) 2 and 3 only
(d) 1, 2 and 3
Answer: (b)
Explanation:
Statement 1 is correct.
Statement 2 is incorrect: parole is granted by executive/prison authorities, not courts.
Statement 3 is correct.
Q. With reference to probation under Indian criminal law, consider the following statements:
Probation is governed by the Probation of Offenders Act, 1958.
Probation involves suspension of sentence by the court.
Probation can be granted only before conviction.
Which of the statements given above are correct?
(a) 1 and 2 only
(b) 2 and 3 only
(c) 1 and 3 only
(d) 1, 2 and 3
Answer: (a)
Explanation:
Probation applies after conviction, making Statement 3 incorrect.
Q. Which of the following correctly distinguishes parole from furlough?
(a) Parole is routine, furlough is emergency-based
(b) Parole is emergency-based, furlough is periodic
(c) Parole suspends sentence, furlough continues sentence
(d) Parole is judicial, furlough is executive
Answer: (b)
Explanation:
Parole is usually granted for emergencies; furlough is a periodic reformative release.