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Delhi HC on Delay in Bail Bond Acceptance


Recently, the Delhi High Court took suo motu cognisance of a petition pertaining to the delay in acceptance of bail bonds by jail superintendents.

The court observed that -‘Deprivation of liberty for single day is a day too many’.


GS paper-2: Structure, organization and functioning of the Executive and the Judiciary – Ministries and Departments of the Government

Dimensions of the Article:

  1. Bail in India: Overview and Types
  2. Types of Bail:
  3. What is liberty?
  4. Ideals of liberty:
  5. Negative and positive liberty:
  6. Constitutional Provisions:
  7. A Basic Principle of Personal Liberty: Bail, Not Jail
  8. The Root Cause of the Resistance to Release:

Bail in India: Overview and Types

  • Bail: Conditional/provisional release of a person held under legal custody, pledging to appear in court as required. It involves a security/collateral deposited before the court for release.
  • Principle: In the Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry (1973) case, the Calcutta High Court explained the principle behind granting bail.

Types of Bail:

Regular Bail:

  • Direction by any court to release a person already under arrest and in police custody.
  • Application filed under Sections 437 and 439 of the Code Of Criminal Procedure (CrPC), 1973.

Interim Bail:

  • Temporary and short-term bail granted by the court while the application for Anticipatory Bail or Regular Bail is pending.

Anticipatory Bail or Pre-arrest Bail:

  • Legal provision allowing an accused to seek bail before arrest.
  • Granted under Section 438 of the CrPC.
  • Issued by Sessions Court and High Court.
  • Discretionary, considering the nature of the offense, antecedents of the accused, and other factors.
  • Conditions may be imposed, like surrendering the passport or reporting to the police regularly.

Statutory Bail:

  • Distinct from bail under regular CrPC sections.
  • Granted when the police or investigating agency fails to file a report/complaint within a specified time (Section 167(2) of the CrPC).

What is liberty?

freedom is the absence of constraint and it allows the full development of the individual’s creativity, sensibilities and capabilities: be it in sports, science, art, music or exploration. Moreover, a free society is one that enables one to pursue one’s interests with a minimum of constraints.

Ideals of liberty:

The Preamble of Indian constitution well defined the ideals of liberty that are liberty of thought, expression, belief, faith and worship.

  • Liberty of thoughts: It is fundamental to human being, so that they can develop free ideas and imagination about their life moreover they are free to take decisions as per their will without harming to others. Moreover it helps to develop new ideas and becomes the basis of scientific and cultural evolution.
  • Liberty of expression: John Stuart Mill gave four reasons to uphold liberty of expression:
    • No idea is completely false. What appears to us as false has an element of truth. If we ban ‘false’ ideas, we would lose that element of truth that they contain.
    • Truth does not emerge by itself. It is only through a conflict of opposing views that truth emerges. Ideas that seem wrong today may have been very valuable in the emergence of what we consider right kind of ideas.
    • Truth always runs the risk of being reduced to an unthinking cliché. It is only when we expose it to opposing views that we can be sure that this idea is trustworthy.
    • A society that completely suppresses all ideas that are not acceptable today, runs the danger of losing the benefits of what might turn out to be very valuable knowledge.
  • Liberty of belief, faith and worship: These fundamental values give sense of security to humans so that they can do religious practices as per their will.

Negative and positive liberty:

Negative liberty: it  seeks to define and defend an area in which the individual would be inviolable, in which he or she could ‘do, be or become’ whatever he or she wished to ‘do, be or become’. This is an area in which no external authority can interfere. It is a minimum area that is sacred and in which whatever the individual does, is not to be interfered with. It is an inviolable area of non-interference in which the individual can express himself or herself.

Positive liberty: Positive liberty recognises that one can be free only in society (not outside it) and hence tries to make that society such that it enables the development of the individual whereas negative liberty is only concerned with the inviolable area of non-interference and not with the conditions in society, outside this area, as such.

Challenges related to liberty: Liberty has two dimensions positive and negative liberty. Negative liberty defines the area which is inviolable and individual can enjoy absolute freedom and positive liberty defines the area of society in which individual should respects the rights of others.

  • State vs individual: Sometime in the name of national security, the state tries to curtail the individual liberty e.g. sometime the authority misuse the section 124A of IPC, which is related to sedition charges.
  • Aadhar Act:  The people share their personal information to authority. This information is directly related to individual dignity. Moreover authority can be misuse this information which is against the liberty.
  • State vs religion: Sometime, In the name of secularism, the state curtail the individual freedom e.g. the France govt banned the burkha. Which goes the rights of minority community.

Constitutional Provisions:

1: RIGHT TO FREEDOM (Indian constitution)

Art. 19 – Freedom of speech and expression, assembly, association, movement, residence, and profession.

Art. 20 – Protection in respect of conviction for offenses.

Art. 21 – Protection of life and personal liberty. Art. 21A – Right to elementary education.

Art. 22 – Protection against arrest and detention in certain cases.

A Basic Principle of Personal Liberty: Bail, Not Jail

  • Justice Krishna Iyer stated that the “basic rule” is “Bail, not Jail” almost fifty years ago.However, this fundamental principle of personal liberty has consistently been disregarded, resulting in the incarceration of common people, human rights activists, writers, educators, and even press reporters.
  • According to data provided by the National Crime Records Bureau (NCRB), 4,27,165 of the total 5,54,034 prisoners were incarcerated as of December 31, 2021, meaning that more than four lakh accused were detained without bail while awaiting the start or conclusion of their trial.

The Root Cause of the Resistance to Release:

  • The higher judiciary is overrun with bail requests as a result of reluctance at the grassroots levels to grant bail, according to the Chief Justice of India (CJI), who made this statement in November 2022 while speaking at an event hosted by the Bar Council of India.
  • Despite Justice Iyer’s unambiguous statement from more than 50 years ago and the Supreme Court’s thorough instructions on arrest and bail in Satender Kumar Antil v. CBI, the basic principle of bail is frequently disregarded or rejected by the courts. In addition, even the Supreme Court is currently dealing with hundreds of bail applications and a sizable number of habeas corpus petitions.
  • The CJI stated in the Arnab Goswami case that “deprivation of liberty for a single day is a day too many,” so these are significant numbers.
  • The judiciary must show more empathy in order to address the problems that people facing trials face.
  • The need for greater transparency within the judicial system is also urgent.
  • The courts should think about ordering daily proceedings to speed up the legal process and avoid prison overcrowding. This will help the case move along smoothly and allow people to get justice quickly.

-Source: The Indian Express, The Hindu          

April 2024