2. The law relating to bail is contained in sections 436 to 450 of
chapter XXXIII of the Code of Criminal Procedure, 1973.
Section 436 deals with situation, in what kind of cases bail should be
granted.
Section 436 deals with the situation when bail may be granted in case
of a bailable offence.
Section 439 deals with the special powers of the High Court or the
Court of Sessions regarding grant of bail.
Under sections 437 and 439 bail is granted when the accused under
detention.
3. Khatri and Ors v/s State of Bihar and Ors.
(AIR (1981) SC 928)
Supreme Court Observations:
• State cannot avoid its constitutional obligation to provide free legal services to a poor
accused by pleading financial or administrative inability.
• The constitutional obligation of the State to provide free legal services to an indigent
accused is not only at the stage of trial but also at the stage when he is first produced before
the magistrate and also when he is remanded from time to time.
• However the right to free legal aid would be illusory for an indigent accused unless the
Magistrate before whom he is produced informs him of such right. It would be mockery of
legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal
services.
SUPREME COURT JUDGMENT
4. Moti Ram and Others v/s State of Madhya Pradesh
AIR (1978) SC 1594
SUPREME COURT JUDGMENT
The Court held:
“Even so, poor men-Indians are, in monetary terms, indigent's
young persons, infirm individuals and women are weak
categories and Courts should be liberal in releasing them on
their own recognizance's put whatever reasonable condition
you may.”
~ The code of Criminal Procedure Code, 1973 - Sec.436 - Where a person
is unable to give bail within a week of the date of his arrest, it shall be a
sufficient ground for the officer or the court to presume that he is an
indigent person and is unable to furnish surety ,instead of taking bail
from such persons ,discharge him on his executing a bond with out
sureties for his appearance.
5. Hussainara Khatoon v/s. Home Secretary, State of Bihar
(AIR 1979 SC 1369)
Courts must abandon the antiquated concept under which pretrial
release is ordered only against bail with sureties.
The Court held:
“If the Court is satisfied, after taking into account, the basis
of information placed before it, that the accused has his
roots in the community and is not likely to abscond it can
safely release the accused on the personal bond”.
SUPREME COURT JUDGMENT
6. Free Legal Aid Committee, Jamshedpur v/s State of Bihar
(1982) 3 SCC 378
It was brought before the court that the persons released on
bail are asked to be present before the court every 14 days
even when the enquiry is pending and the charge sheet has not
been filed,
The accused granted bail by the Magistrate court are re
arrested once the case is committed to the Sessions court .
The Supreme Court held that this practice was wrong
and caused unnecessary harassment of the accused.
SUPREME COURT JUDGMENT
7. Criminal appeal No.2178 of 2011 (arising out of SLP (Crl.)
No.5650 of 2011)Decided on :23-11-2011
SANJAY CHANDRA V/S CBI
SUPREME COURT JUDGMENT
As recently as 2011, the Supreme Court reaffirmed its decades-old commitment
to “bail not jail.”
“It is not in the interest of justice that accused should be in jail for an
indefinite period.” And, “This Court, time and again, has stated that bail is the
rule and committal to jail an exception.
It is also observed that refusal of bail is a restriction on the personal liberty of
the individual guaranteed under Article 21 of the Constitution.”
