DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

CRIMINAL PROCEDURE CODE

‘Role of Criminal Courts in Granting Bail and Bail Reforms’

SUBMITTED TO: SUBMITTED BY:

Dr. Prem Kumar Gautam Praveen Singh
Assistant Professor 200101179
Dr. Ram Manohar Lohiya 5th Semester
National Law University B.A.LL.B (HONS.)
 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

TABLE OF CONTENTS

1. Acknowledgements… .................................................................................................. 3

2. Objective ........................................................................................................................ 4

3. Methodology… .............................................................................................................. 5

4. Chapters

• Chapter 1: Introduction ............................................................................................... 6

• Chapter 2: The Concept Of Bail .................................................................................. 7

➢ Historical Aspect Of Bails

➢ History Of Bails In England
➢ History Of Bails In India

• Chapter 3: The Bail System In India: Policy And Role Of Courts .......................... 9
➢ The Legislative Base
➢ Judicial Policy And Role Of Courts

• Chapter 4: Anticipatory Bail .....................................................................................12

➢ Nature And Purpose
➢ Judicial Approach

• Chapter 5: Evaluation Of Bail System In India And Bail Reforms Required To

FillThe Loopholes .................................................................................................... 14
➢ Evaluation Of Bail System
➢ Bail Reforms

5. Conclusion – Summing Up… ................................................................................. 17

6. Bibliography ............................................................................................................ 18

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

ACKNOWLEDGEMENTS

This is not just a customary acknowledgment of help that I received but a sincere expression of
gratitude to all those who have helped me complete this project and made it seem apparently
more readable than otherwise it would have been.

I am in debt to my faculty advisor Dr. Prem Kumar Gautam for his humble guidance and
assistance in my project titled ‘Role of Criminal Courts in Granting Bail and Bail Reforms’
and for making it seem easy by lucidly explaining its various aspects. I would like to thank him
for guiding me in doing all sorts of research, and suggestions and having discussions regarding
my project topic by devoting his precious time.

I thank Dr. Ram Manohar Lohiya National Law University for providing Library, Computer, and
Internet facilities. And lastly, I thank my friends and all those persons who have given valuable
suggestions pertaining to the topic and have been a constant source of help and support.

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

OBJECTIVES

Bail Reforms is supposedly one of the few most important topics in the Code of Criminal
Procedure. The hullabaloo revolves around the role that court plays in granting such bail. This
project tries to explain this concept of bail and bail reforms and their legal implications. It sheds
light on the present Indian scenario and while doing so also addresses the recent provisions in
this regard. Thus, the further objectives are-

• To understand the concept of bail.

• To analyze the concept Bail System in India.
• To understand the concept of Anticipatory Bail.
• To scrutinize related judicial pronouncements.
• Evaluation of the Bail System in India and the required Bail Reforms.

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

RESEARCH METHODOLOGY
Laymen tend to believe that good ideas just come to an academic author who possesses a holy
spark. To refute this view is just as difficult as it is to establish that new ideas are invariably the
outcome of meticulous work. Undoubtedly inspiration plays an important role in the selection by
an author of a fruitful area for research and is indispensable for recognizing and developing a
good idea. In its absence, a fascinating topic may receive a mundane and boring treatment.

George III is reputed to have said that-

“The lawyers do not know much more law than other people but they know better where
to find it.”

The researcher has adopted the doctrinal methodology and has based her research mainly on
secondary sources of information like books, articles, judgments, and the internet. The author has
done extensive research on the Role of Courts in Granting Bail and Bail Reforms in this
project. For this purpose, the author has relied on both primary as well as secondary sources.

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

INTRODUCTION

Bail though primarily a legal term, has acclaimed usage both by lawmen and laymen. It,
however, has not been statutorily defined. Conceptually, it continues to be understood as a right
to assertion of freedom against state-imposed restraints. The main purpose of the arrest of an
accused is to secure his presence on trial and to ensure his being available for punishment on
conviction. If the presence of an accused at his trial can be ensured by means other than his
arrest or detention, it would be quite possible to allow him the enjoyment of his liberty during his
trial. One of the ways to prevent unnecessary deprivation of the liberty of an accused is ‘BAIL’.

Literally, the expression Bail denotes security for the appearance of a prisoner for his release.
Etymologically, the word is derived from an old French verb ‘bailer’ which means to give or to
deliver, although another view is that its derivation is from the Latin term bajulare meaning to
bear a burden.

Bail is a generic term that means judicial release from custody. The release on bail in a criminal
case after furnishing the required bond is recognized as a fundamental aspect of Human Rights.
The Code of Criminal Procedure lays down the norms for granting bail and bonds in sections 436
to 450. But there is no definition of the word bail in the Code of Criminal Procedure, 1973. The
offenses are however classified as Bailable and Non-Bailable. Article 21 of the Constitution of
India provides complete safeguard to every Indian Citizen, irrespective of caste, creed, and color
– the rich, and the poor alike for the protection of life and personal liberty.

Bail is thus a grant of conditional liberty to an accused who assures or on whose behalf assurance
is given that he would be present at the trial. Bail may thus be regarded as a mechanism whereby
the state devolutes upon the community the function of securing the presence of the prisoner and
at the same time involves the participation of the community in the administration of justice.

he Author of this present project topic will delve into the role of criminal courts in granting bail
to the accused and will also make an in-depth analysis of loopholes in the Bail Laws and certain
reforms required to make the system more foolproof.

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

I. THE CONCEPT OF BAIL

A. HISTORICAL ASPECT OF BAIL

The custom of bail grew during the medieval ages in England out of the need to free untried
prisoners from disease-ridden jails while they were waiting for the long-delayed trials conducted
by traveling justices. Prisoners were bailed or delivered to reputable third parties of their own
choice who accepted responsibility for assuring their appearance at the trial. If the accused did not
appear, his bailer would stand trial in his place. But this system did not work for a long time as it
was too big a punishment for the person who stood surety for the accused person. As is rightly
said – ‘necessity is the mother of invention. From this grew the modern practice of posting a
money bond through a commercial bondsman who receives a cash premium for his service and
usually demands some collateral security as well. In the event of non-appearance, the bond is
forfeited after a grace period of a number of days, during which the bondsman may produce
the accused in court1.

B. HISTORY OF BAILS IN ENGLAND:

Under English Law, the operational mode for interim release of an accused was that a surety had
to be bound to produce the accused to stand his trial on the day appointed for such trial. This
position was in keeping with the concept of the King’s Peace, it made responsible the party in
whose custody the accused had been delivered, under the recognized principle of law that a body
could be detained for body released. Such a position would seemingly be untenable in a land
where the Magna Carta has remained the mainstay of liberty.

But the law of bail of the kind mentioned above subsisted and emanated from the court’s concern
and obligation towards the King’s Peace which theoretically had been intolerant of any
disturbance being caused to the public or to the interests of the sovereign2.

1
Janak Raj Jai, Bail Law and Procedures, Third edition, Universal Law Publishing, New Delhi, 2004 at pg 1-2.
2
Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000, at pg 4

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

It can thus be found that the concept of bail under the English common law concerned itself with
both the values namely, that of personal freedom as well as that of the security of the politico-
legal system.

C. HISTORY OF BAILS IN INDIA:

In India, the concept is traced back to ancient Hindu jurisprudence which required, inter alia,
expedient disposal of disputes by the functionaries responsible for the administration of
justice. No laxity could be afforded in the matter as it entailed penalties on the functionaries3.
Thus, a judicial interposition took care to ensure that an accused person was not unnecessarily
detained or incarcerated. This indeed devised practical modes both for securing the presence of a
wrongdoer, as well as to spare him of undue strains of his personal freedom.

During Mughal rule, the Indian legal system is recorded to have an institution of bail with the
system of releasing an arrested person his furnishing a surety. The use of this system finds
reference in the seventeenth-century travelogue of an Italian traveler Manucci whom himself
resorted to his freedom by bail from imprisonment for a false charge of theft. He was then
granted bail by the ruler of Punjab but the Kotwal released him only after he furnished a surety4.

Under Mughal law, an interim release could possibly be actuated by the consideration that if the
dispensation of justice got delayed in one’s case then compensatory claims could be made on
the judge himself for losses sustained by the aggrieved party5. The advent of British rule in India
saw a gradual adaptation of the principles and practices known to Britishers and prevalent in the
common law. The increasing control of the East India Company over Nizamat Adalats and other
fouzdary courts in the mofussil facilitated gradual inroads of English criminal law and procedure
into the then Indian legal system6.

3
R.P Kagnle, Kautilya Arthshastra IV, 1963, ch.9
4
William Irivine, Mughal India, Vol II, 198 (1907); Manucci’s travel account of the mid-seventeenth century was
originally published in Italian and was translated later by William Irvine.
5
Sarkar J.N., Mughal Administration In India, 1920 at pg 108
6
Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000, at pg 5

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

II . THE BAIL SYSTEM IN INDIA: POLICY AND ROLE OF COURTS

A. THE LEGISLATIVE BASE

The Statutory fabric of the bail system in India is mainly comprised of some provisions of the
Code of Criminal Procedure, 1973, particularly extending from sections 436-439. The real
matrix of the system is however found in the judicial decisions. A view of both is indispensable
for a proper understanding of the pros and cons of the bail system in India. Section 436
prescribes a doctrine that bail can be had as of right by a person who has been arrested without a
warrant. Since arrest without a warrant is a serious encroachment upon an individual’s personal
liberty, the doctrine comes as a protective check against executive action. This right is extended
to cover situations where the interests of society are not likely to be damaged by bailing out a
person; instead, the state’s obligation to protect individual liberty gets promoted.

Section 437 provides for seeking and getting bail in non-bailable cases. However, certain limits
have been set out. Society is unwilling to expose itself to such high risks as may affect its
security and stability. Accordingly in non-bailable cases, if circumstances of the case reasonably
suggest and events and antecedents speak of a probability of guilt of such a high order that it may
attract a sentence of death or life imprisonment then the privilege of being bailed out is denied.
But risks emanating from a juvenile, a woman, a sick, or an infirm person may not be so grave as
they may be in other cases. An exception has therefore been carved out to admit such
persons to bail for alleged non-bailable felonies also7.

7
Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000, at pg 15-16

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

B. JUDICIAL POLICY AND ROLE OF COURTS

The callousness of law enforcement agencies attendant with other abuses in the criminal justice
administration is an oppressive burden of an indigent, poor, and illiterate accused persons. These
factors arouse the sensitivity of the court and in countering the ill effects of the same the courts
use the lever of human rights to take a relaxed view of the bail system.

Keeping in mind the aforementioned concept the Supreme Court gave a landmark judgment in
Hussainara Khatoon v. the State of Bihar8. The court held that “it would be more consonant
with the ethos of our Constitution that instead of the risk of financial loss the system should take
into consideration other relevant factors such as family ties, roots in the community, job security,
membership of stable organizations etc”. The court emphasized that these ought to be the
determinative factors and laid down that primarily the pre-trial release should be obtained on a
personal bond without monetary obligation.

In Maneka Gandhi v. Union9 of India, it was laid out that a speedy trial is the essence of
criminal justice and there can be no doubt that a delay in trial by itself constitutes a denial of
justice.

A scrutiny of the recent judicial dicta reveals that the consideration of delay in the proceedings
has indeed influenced the courts in granting bail in cases like Virsa Singh v. State through
CBI10, Jai Singh v. State of Rajasthan11, Mohamad Yusuf Ali v. Asst. Collector of Customs12
and many others.

In Jai Singh v. State of Rajasthan13 the court has observed “it is really disturbing that the trial
courts are so unaware of liberties of the citizens. Now it is settled proposition of law that
expeditious criminal trial is a fundamental right of the accused, especially when he is in jail or
uncertain period, as an under trial prisoner, especially when there is no fault on his part”.

In many cases the judiciary has shown a direct concern for individual freedom and personal
liberty. Thus, where the sessions court dismissed a bail application without assigning any

8
1979 CR.L.J.1045 (SC)
9
AIR 1978 SC 597
10
1992 CR.L.J.164
11
1992 CR.L.J.2873
12
1992 CR.L.J.3285
13
Supra note 12
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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

The reason, the High Court granted bail14. Plea of alibi and all other plausible defenses has also
been held worth consideration in matters of the grant of bail15.
The insistence for high cash security for bail came for drastic criticism by the Karnataka High
Court in the case of Afsal Khan v. State by Girija Nagar Police16. The court observed that in the
case on hand, the present approach of the sessions judge in insisting upon the petitioner to
deposit cash security of Rs. 750 in each case totaling Rs. 6750 is not only harsh and oppressive
but indirectly denial of bail thus depriving the person his individual liberty.

Following the pro-personal liberty stance, the courts have granted bail to a co-accused in a case
under sections 302, 324, 504, 506, IPC for having been involved only in extortion17. The courts
have accordingly taken a cumulative view of all three essential variables including the process
of justice, interests of the society, and personal liberty. The Madras High Court being conscious
of the connotation of bail as ‘restrictive liberty’ declared in Thaniel Victor v. State of Tamil
Nadu18 that a person who was granted bail by the court is deemed to be under the custody of the
court.

The court has categorically ruled in Shivarama Gowda v. the State of Karnataka that
collateral considerations such as that the bail applicants being poor agriculturists, their families
would be constrained to starve, etc. may not have any impact on the decision whether they
should be released on bail or not.

In bail matters, the courts have taken into consideration the other requirements of fairness also.
Thus bail was canceled when it was found that the accused was a relative of the lawyer and that
influenced the judge19.

Thus the existing bail system and policy are characterized by consideration of personal liberty,
social security and safety, and the requirements of fairness and justice, of which the courts are
trying to take a cumulative cognizance. Every judgment of the courts needs a separate
consideration because every case appears a new experience in itself.
14
Jatindra Singh v. State of Rajastan 1999 CR.L.J.158(Raj)
15
State of Gujarat v. Deepak Jasawantlal Sheth, 1999 CR.L.J.162
16
1992 CR.L.J.1976
17
Nand Kumar v. State of U.P. 1999 CR.L.J.2339 ; see also Ram Sanehi v. State of U.P. 1999 CR.L.J.3708.
18
1991 CR.L.J.2416 (Mad)
19
State of U.P. v. Dev Prakash, 1999 CR.L.J.3707

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

II I. ANTICIPATORY BAIL

A. NATURE AND PURPOSE

One of the challenges that law enforcement agencies are facing from the human rights movement
is that nobody should be confined in any way unless he is declared guilty. To meet such posers
the bail mechanism in India has been statutorily extended by induction into its fold a
comparatively new concept, commonly known as ‘anticipatory bail. Section 438 of the Cr.PC
has been shaped to incorporate this concept. It deals with a situation where a person having
reasonable apprehension that he would be arrested on an accusation of having committed a non-
bailable offense seeks to prevent his detention. Such a person can move an application in an
appropriate court, which may grant him anticipatory bail.

B. JUDICIAL APPROACH

A Judicial approach to the exercise of discretion has been a cautious one. It does not and perhaps
cannot exercise the power on the assumption that a frivolous accusation may be at the back of a
proposed or initiated criminal proceeding. The nature of the accusation is likely to determine the
attitude of the court in this regard. The discretionary power is to be exercised only after notice to
the public prosecutor is given and necessary reasons are recorded if the court considers granting
of bail necessary in the interests of justice.

In Narsingh Lal Daga v. the State of Bihar20, Patna High Court ruled that the provisions be used
in cases where the court is convinced that the person is of such a status that he would not
abscond or otherwise misuse his liberty. The court further said that even before this provision
was introduced, there had been a practice in vogue which enabled a court to release on bail
such persons without a surety or on their having given a personal undertaking that they would
appear before the court if required to do so.

20
1977 CR.L.J.1776 (Pat)

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

In Badri Prasad Pathya v. State21 the court endorsed the view that the grant of anticipatory bail
is mainly meant to relieve a person from being unnecessarily deprived of liberty; though in this
case, the consideration of high hazards of releasing the persons alleged to be involved in a prima
facie case of murder weighed with the court in rejecting the application as against their claims
for personal liberty.

The purpose underlying section 438 of the code is to ensure that a person anticipating arrest is
not obliged to go to jail till he is able to move the court for being released on bail. But it cannot
also be constructed that such a direction should be allowed to come in the way of police
investigations nor should it seek to circumscribe police powers relating to remand to police
custody for purposes of facilitating investigation. Accordingly, in Samabhai v. State of
Gujarat22, the court observed that a direction for anticipatory bail would not be allowed to come
in the way of a fuller consideration of the question of custody of the person when the
investigations are incomplete.

The power of the sessions court and the high court to grant anticipatory bail has been brought out
in Devidas Raghu Naik v. the State of Maharashtra23 by the Bombay High Court. In this case,
the appellant’s prayer for anticipatory bail was rejected by the session court. He, therefore,
approached the High Court with the same prayer on the same grounds. The court granted him
anticipatory bail clarifying, that there is no bar whatever for a party to approach either the high
court or the sessions court as concurrent jurisdiction is given to the high court and the sessions
court and the fact that the sessions court has refused a bail does not operate as a bar for the high
court entertaining a similar application.

In spite of the given reservations about anticipatory bail, there exists another stream of thought,
according to which it can be safely observed that the anticipatory bail mechanism is a

21
1977 CR.L.J.1524 (Guj)
22
1977 CR.L.J.1524
23
1989 CR.L.J.252 (Bom)

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

Without it innumerable persons may be made to suffer in custody just on account of some
suspicion or a false charge. Also, the experiences of courts in evolving useful precedents in
matters of anticipatory bail must not be undervalued.

IV. EVALUATION OF BAIL SYSTEM IN INDIA AND BAIL REFORMS

REQUIRED TO FILL THE LOOPHOLES

A. EVALUATION OF BAIL SYSTEM

The law governing bail in India is inadequate uncertain and above the ground. The working of
the system is also unsatisfactory. The administration of criminal justice has recognized that a bail
decision is a recurring one that takes place through a number of distinct stages. It also
recognizes that pre-trial releases by the police on bail are within the purview of the bail system.
Further bail can be granted before the accused makes an appearance before the court or before
the verdict of the trial is passed and even after he has been declared guilty and convicted in order
to enable him to avail the appeal process.

The practice of releasing on bail has assumed the form wherein an accused enters into a bond
specifying a sum of money that he is liable to forfeit if he fails to perform any of the obligations
imposed on him by the court24. Generally, the stipulated Guarantee in terms of money in a bond is
not deposited in cash in court, though the practice to do so in the case of a police bail may be a
valid one.

In addition to the bond, the release condition on bail may require a surety or sureties, who has
also to bind himself to pay a specified sum of money in the event of the failure of an accused to
appear before the police or the court on the appointed day. In the common law, a surety was
essential to bail out a person which was later dispensed with. However, the Code of Criminal
Procedure never spelled out the requirement of a surety as a pre-condition for release on bail
though in practice the courts grant bail only on the accused’s furnishing a bond with a surety25.

24
The procedure when a bond has been forfeited is prescribed under section 446 of the Cr.PC 1973.
25
Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000, at pg 171

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

B. BAIL REFORMS

Reformulation of bail provisions in the Code may alone be not sufficient to make the system of
bail function with a purpose. A serious effort of securing public support and participation in the
administration of criminal justice, coupled with necessary legislative, executive, and judicial
powers to act effectively is most warranted. Such an effort alone can help in fulfilling the
preconditions required for the smooth operation of the bail system. Urgent attention in this
regard is needed towards26:

a) Proper functioning of police powers

b) Developing the devices to control the police power

c) Speedy trial of the accused

d) Availability of legal aid and legal service

Reform of the existing bail law would require the enactment of a comprehensive code to replace
the existing law on the subject. The proposed code must reflect the basic philosophy, utility, and
guidance for granting and refusal of bail. Reforms would include rationalizing the basis of
classifying offenses into bailable and non-bailable ones. Bail with or without conditions and the
guidelines to be followed for purposes of imposing conditions together with the nature and
purpose thereof are also to be spelled out. The modes and forms of release will have to
rationalize, explained, and streamlined so as to enable an accused to ask for a specific form of
release commensurate with his capacity and the circumstances of the case.

Indulgence can be shown in the concept of Bail as a matter of right in cases where the offense
charged is of non-imprisonable nature or the alleged offender, when convicted is entitled to non-
custodial punishment. However, conditions could be imposed in such cases and their breach may
make the person liable to be arrested and put into custody27. Two important aspects of the bail
process must be taken into consideration while formulating a new bail law. They are: (a) the
police power to grant bail (b) the police power to arrest and seek

26
Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000
27
Janak Raj Jai, Bail Law and Procedures, Third edition, Universal Law Publishing, New Delhi, 2004

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

remand. In the case of the former, the law may specifically provide for the grant of police bail in
cases of arrest under a warrant, unless the release is imprudent on grounds that may be recorded.
This principle can be made applicable to summary offenses as well. The right to be bailed in the
above cases may be accompanied by a police right to ask for a surety. In the latter case, where
the initial police arrest is either illegal or without a warrant, the police request for the grant of the
remand should be given consideration only on the basis of the guidelines which must be
legislatively provided in the code.

The procedure for bail hearing needs specific treatment. The court may be empowered to
conduct any bail hearing in private. It may also be empowered to conduct any bail hearing in
private. It may also be empowered to receive such information or material as may be relevant
despite the question of its admissibility under the rules of evidence. Another major area that calls
for consideration is sure – an important component of the bail process. The substituting of surety
by newer ventures, as disclosed by the Manhattan Bail Project or by the hostel system for
undertrials as obtained in some Scandinavian countries, can also be taken note of for purposes of
experimentation in certain cases. The duration, variation, and revocation of bail order also require
elaboration particularly with a view to enabling a prosecutor to apply for a variation of the terms
or conditions of the bail granted, or where the breach of or likely breach of conditions become
imminent to cause difficulties for those entrusted to assist the courts of justice in the fulfillment
of their obligations to speedy trial28.

In sum, the reformulation of bail law is not a mere revision of the law. It is a prelude to any
commitment to reform the administration of criminal justice. The reform calls for garnering total
efforts. Concerned agencies of the state and the government cannot ignore it for long, but prior to
the undertaking of any reform, it is essential that the job of systematization and analysis is
completed. These are necessary prerequisites for any effort to draft a code. Therefore, an intense
debate has to precede before the new law is codified with advantage even at the cost of impairing
the rule oflaw as presently assured by the existing law.

28
Ibid

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

CONCLUSION

The object and purpose of bail have always been intelligible in criminal law jurisprudence. The
perspectives are at times lost and the bail process has either been used to give an over-emphasis
either to the liberty of the individual or to the security of the state. The malfunctioning of the
administrative machinery and its loose control over the law enforcement agencies have brought
to the fore instances where judicial action to protect personal liberty in the wake of the governing
awareness of human rights has hardly been a redeeming feature. This approach has resulted in
some imbalances in the mechanism, system, and process of bail, which is a vital component of
the machinery geared to serve the ends of criminal justice. This perspective has to remain
constantly in view while understanding the working of the bail system.

The law on bail as legislatively enacted is poorly drafted, leaving broadly the system to be built
by the enforcement agencies themselves, which they have been doing to date.

The inclusion of provisions like anticipatory bail in the scheme of the bail system is according to
some critics an anomaly because of semi assimilation of this concept with the ordinary concept
of bail. It is being suggested that the provisions of anticipatory bail be kept out of the domain of
bail altogether. However, the withdrawal of the scheme will not be justified in any way.

In sum, the confusion in the concept of bail and also in the working of the bail system is largely
the result of a basic misunderstanding of the concept and the lack of its proper formulation under
the Code. A new law on the subject alone can rectify the errors. However, proper functioning of
the bail process in our legal system should guarantee the existence of changed social facts, which
may be prerequisites for a successful functioning of the bail system.

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 ROLE OF COURTS IN GRANTING BAIL AND BAIL REFORMS

REFERENCES

BOOKS REFERRED

1. Janak Raj Jai, Bail Law and Procedures, Third edition, Universal Law Publishing, New Delhi.
2. Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000.
3. Ratanlal Dhirajlal, Criminal Procedure Code (1999) Universal, Delhi.
4. Chandrasekharan Pillai (ed.) Kelkar's Outlines of Criminal Procedure (2001), Eastern
Book House, Lucknow.

18