Exercise of Discretion by Courts in Deciding Bail Applications

When an allegation of a cognizable case crops up against a person, for
any genuine or other reason, before the police for necessary legal
action, the Station House Officer (SHO) is duty bound to register the
First Information Report (FIR). Thereon the police, in a ritualistic
manner as being done over the years, would arrest him/her and put in
lock-up. The detention may continue for many years before the case is
finally decided by the court. Later when the bail application for
his/her release is moved before the court the judge will refuse to grant
him/her bail in yet another ritualistic response. Denial of bail is an
easy option for the magistrate in not getting into unnecessary
allegation or trouble. The magistrate ignores the fact that the granting
or denial of bail is to be exercised with utmost care and caution by
applying pristine discretion, unequivocally granted to him by Section 78
read with 81 of the Criminal Procedure Code (CrPC).

Bail basically is the temporary release of a person from the legal
custody by making an undertaking by him that he shall submit himself to
the court and its judgment at the right time whenever required.

Indian criminal law classifies offences into two types - bailable and
non-bailable - as per the first schedule of the CrPC. All serious
offences are non-bailable in nature. This article deals exclusively with
granting or refusing bail in the non-bailable offences. If an accused in
a non-cognizable case is arrested or detained by the police without a
warrant he/she has got the privilege (not the right) to be granted
bail at the discretion of the court. Even though bail in a
non-bailable offence is a matter of pure discretion it is not to be used
in an arbitrary, vague or fanciful manner. It should be exercised based
on sound discretion laid down by the statutes and case laws. If the
order is arbitrary or capricious in nature, the appeal court can reverse
it under its power of superintendence and revision. Judicial discretion
in granting or refusing bail should be exercised by carefully balancing
the right of liberty of the accused guaranteed by Article 21 of the
Constitution and the general security of the society at large.

In our country, bail is an integral part of socially sensitive judicial
process. It is the duty of a magistrate to admit the accused to bail
unless there are compelling grounds to believe that the accused would
not appear before the court to take the trial or judgment later. The
basic reason for putting the accused in jail in general is to ensure
his/her availability for trial and to take punishment. Therefore while
deciding a bail application by the magistrate the granting of bail is
imperative unless it is very dangerous to do so.

After 60/90 days of judicial custody of the accused for the purpose of
investigation, the accused will have the statutory right to be released
on bail. If an application for bail is made after 90 days even if the
police report is not submitted due to some delay, the accused has every
right to be granted bail. This provision puts pressure on the police to
complete investigation within a reasonable time stipulated in the Code.
The period of investigation comes to an end once the police report is
submitted and then the question of granting bail becomes quite

If there is no substantive ground to believe that the accused had
involved in the offence, he/she shall be released on bail under section
436 of the CrPC. If there are grounds for further inquiry into his/her
guilt, then also he/she can be released on bail under section 446A
pending such inquiry. However the reasons for his/her release should be
recorded by the magistrate. If the trial of a person accused of any
non-bailable offence is not concluded within a period of 60 days from
the first date fixed for taking evidence such a person shall be released
on bail, unless the magistrate directs otherwise. The purpose of this
section is to avoid hardship to the accused when the judicial
proceedings are unduly prolonged. However, the magistrate can grant bail
only when the accused is believed to be not guilty of a crime which
entails punishment of death or life term. In judicial proceedings of
other offences, the magistrate is endowed with unfettered discretion,
but devoid of arbitrariness, in exercising the power to grant or refuse
bail. The court, in exercising the above said discretionary power,
should be guided by some legal doctrines or principles.

One should not forget that the precise objective of pre-trial detention
is to make the accused available for trial and judgment but not to
punish him/her. The law on bail favours granting of bail as the default
action. A well settled judicial dictum says bail is the rule; refusal
is the exception,
but there exist some laws like NDPS which were carved
out without following the legal dictum laid down in State of Punjab Vs
Baldev Singh

The SC says the judicial officer while considering bail application
should discreetly examine the following circumstances:

  • the enormity of charge

  • the nature of the accusation

  • the scrutiny of punishment which the conviction may entail

  • the nature of evidence in support of the accusation

  • the danger of accused being absconding

  • the protracted nature of the trial

  • the danger of witness being tampered with

  • the opportunity to the accused for the preparation of his/her case

  • the health, age and sex of the accused

  • the nature and gravity of the circumstances of the offence

  • the position and status of the accused in the society

  • the probability of accused committing more offences

  • the interest of society in general

The above given list is not an exhaustive one indicating all the factors
governing the grant or refusal of bail. The previous conviction of the
accused and the likelihood of repetition of the offences by him are also
to be considered while taking a decision on bail. The collateral
consideration that the accused is poor has no much value as a criterion.
Granting bail basing on the remarks of the public prosecutor is
tantamount to non-exercise of judicial discretion and held as improper
by the apex court.

A refusal of bail by a lower court does not preclude one from filing
another application with more detailed materials and circumstances
before a higher court. But filing an application to a subordinate court
after the application being rejected by a higher court is unacceptable.
While granting or refusing the bail, the reasons considered for
discretionary exercise must be recorded for making them known to others.
While considering bail the detailed examination or analysis of evidence
or merit of the case is to be avoided by the officer/court. If the
offence is punishable with death or life term, the accused shall not be
released on bail except when the accused is a child, woman or sick
person. The High Court has concurrent jurisdiction with the Sessions
Court to grant bail under Section 439 of the CrPC. Therefore, it is
considered desirable to move the lower court first, except in
exceptional circumstances. If so the High Court can amend, add or
abrogate the bail order of the lower court, if necessary.

Recently in Hussain & another v Union of India (Crl A Nos. 509 and
511 of 2017) the Supreme Court directed all High Courts to instruct
Subordinate Courts under their jurisdiction to dispose of bail
applications normally within one week. Similarly the High Court has been
asked to ensure that the bail applications filed before them are to be
decided within one month.

In short, bail in a non-bailable offence is to be exercised with great
caution and discretion and such exercise should be devoid of the vice of
arbitrariness. The pre-trial detention which is necessary in some cases
should not be allowed to become a serious threat to the personal liberty
of a citizen.