Bail is rule, Jail is an exception

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(Author: Shivani Agrawal, pursuing LLB from Faculty of Law, University of Delhi.)

This legal principle was given by the pioneer of judicial activism in India, Late Justice VR. Krishna Iyer in the landmark judgement of State of Rajasthan v. Balchand alias Baliay[i]The judgement was given in the light of the rights conferred upon all Indians by the supreme law of the land. The Constitution of India guarantees the right to life and personal liberty to every individual under Article 21 and detention of an individual, impinges upon his liberty and therefore infringes these rights. The court held that the interpretation of the provisions of the Criminal Procedure Code, in regard to the arrest must be in a way that, detention of an individual must be avoided unless indispensable. 

What is Bail?

Various provisions of the Criminal Procedure Code talk about the rights of the accused and the right to bail is one of them. Section 41 of CrPC lays down the grounds of the arrest of an accused, while several sections also provide statutory rights to accused against any such arrest or apprehension of the arrest. These sections exhibit the right to “bail”. Generally speaking, Bail is a security executed to release a detained person, accused of a crime, the judgement of which is yet to be pronounced. 

The bail is generally classified as Regular Bail, Interim Bail, and Anticipatory Bail. 

  • Regular Bail- An application for regular bail can be filed under section 437 and 439. It is granted to an accused already under police custody. 
  • Interim Bail- An interim bail is granted before the hearing of regular or anticipatory bail. It is granted for a fixed and short period. 
  • Anticipatory Bail- An application for anticipatory bail can be filed under section 438, by any person apprehending his arrest by the police for a non-bailable offence. Anticipatory bail can only be granted by a High Court or a Sessions Court. 

Conditions for granting a bail

In the case of non-bailable offences- Section 437 lays down that it is not the right of the accused but the discretion of the court to grant bail.

  • If the accused is gravely sick
  • If the accused is a woman or a child
  • If there is not sufficient evidence available against the accused.
  • If the complainant delays in lodging the FIR.

The reasoning behind the principle of “Bail is rule, jail is an exception”

The feature of the socially critical, anticipatory bail was absent from the old Code of Criminal Procedure and it was only after the 41st law commission report of 1969 [ii]that it became the part of the CrPC, 1973. The reasons for incorporating the provision of anticipatory bail in CrPC were multi-fold. An accused is usually detained to ensure a smooth and easy trial where the accused can be presented as and when required and to maintain the peace of the society. However, the approach of the courts after the judgement of Justice VR. Krishna Iyer has turned a full circle. He held that the basic principles of the courts while deciding cases should be “bail, not jail”. The accused should be granted bail except in situations where there are circumstances suggestive of his fleeting, tampering with evidence and influencing witnesses. 

The principle of “Bail is rule, jail is an exception” is itself based on a profound principle of “Presumption of innocence until proven guilty”. A Supreme Court bench headed by Justice Madan B. Lokur also stated that “the fundamental postulate of the criminal jurisprudence is the presumption of innocence”. It implies that only because a person is accused of commission of a crime, his right of personal liberty cannot be taken away by the state unless that guilt is established beyond reasonable doubts. 

Article 21 lays that any procedure leading to the deprivation of an individual’s right to life and liberty must be just, fair, and reasonable. The idea behind a just, fair, and reasonable procedure is providing a speedy trial to all and free legal aid to those who can’t afford it. It also implies detention of accused of preventive or punitive purposes only. And it is established that pre-trial detention is not a punitive measure. Thus, a refusal for the grant of bail at this stage is against the interest of justice, society, and of course the accused. 

The court held that as the liberty of an individual is his fundamental right and it should not be curtailed for petty or frivolous reasons. Therefore, the courts must consider various relevant factors before putting the accused behind the bars. In the Court’s view, the principles are now losing sight as more and more accused are being incarcerated for longer periods. This results in overcrowding of prisons and years of jail time for the under-trials. This not only questions our criminal jurisprudence but also causes several social problems. 

The accused, for the grant of the pre-arrest bail, needs to clear a simple triple test-

  1. He must prove that he is not a flight risk and will co-operate with the investigation by appearing as and when required by the court.
  2. He shall not tamper with the evidence related to the ongoing case.
  3. He shall not influence any witness, directly or indirectly or make an inducement, threat, or promise to any person acquainted with the facts of the case.

On being satisfied by the triple test, the courts usually grant the anticipatory bail as the detention of any individual rips him of his dignity no matter how destitute or indisposed he might be. The judiciary believes that undoubtedly the grant or refusal of bail is completely at the discretion of the judge after the hearing of the matter, however, the discretion must be exercised judiciously and the judges must have a humane attitude while reprimanding an accused to the police or judicial custody. The court further holds that the judges are at liberty to impose reasonable restrictions on the accused while granting the said bail however, the conditions must not be very strict as to make it incapable of compliance and thus rendering the grant of bail, illusory. 

Important Case Laws

  1. State of Rajasthan v. Balchand alias Baliay 

The principle of “Bail is rule, Jail is an exception” was first propounded in this landmark judgement by Justice VR. Krishna Iyer. The justice prevailed as the court held that there was there were no conditions or circumstances suggestive of the abuse of trust by the accused, placed in him by the court. The court further said that the accused was a social person with a family to maintain and detaining him unnecessarily will be against the norms of natural justice. The court granted him bail with a condition for him to appear at the notice station in Baren, every fortnight and asked him to deposit monetary security of Rs. 5000. 

  • Gurbaksh Singh Sibba and others v. State of Punjab

The court in this case stated that the discretion of the court is not limited only because “the crime is punishable with death or life imprisonment and involves possible blatant corruption of power at the higher level of power”. The court acknowledged that the law also provides several safeguards against the misuse of the provision of anticipatory bail and the judges can impose some reasonable restrictions on the accused, based on the circumstances of the case. 

  • Sushila Aggarwal and Ors. V. State (NCT of Delhi) and Ors.

In this landmark judgement the court discussed that the protection under section 438 cannot be limited to a fixed period. However, the courts can impose a certain time limit on the grant of bail, depending upon the facts of the case. The court further said that the status of the bail does not change when the accused is summoned to the court or when the charges are framed, the protection under this section can extend till the very end of the trial. 

With a rise in human rights activism, the liberty of an individual and the interest of society holds the utmost importance to law. Unnecessary detention not only infringes an accused’s fundamental rights but also rips him of dignity in the society and thus it is uncalled for. Therefore, until there is a cogent reason for detaining an accused, the courts promote the principle of “Bail is rule, Jail is an exception”.


[i] The petitioner-respondent was convicted and sentenced by the Sessions Court but released after the judgment of the High Court. The petitioner surrendered before the trial court as required under Order XXI rule 6 of the Supreme Court Rules after leave was granted to the State to file an appeal against acquittal by the High Court and moved an application for bail.

Granting the bail, the Court held: “The basic rule is bail, not jail.”

[ii]Section 438 of the Criminal Procedure Code (CrPC) provides for the provision of anticipatory bail. However, the term “anticipatory bail” is nowhere defined in the CrPC. The purpose of the grant of anticipatory bail is to protect the life and liberty of the appellant and to protect him from unnecessary trauma and defamation of frivolous and false charges and arrest. Anticipatory bail became part of the new CrPC in 1973, after the 41st Law Commission Report of 1969 recommended the inclusion of the provision.