CHAPTER 1

INTRODUCTION

A. General

Man is a social animal. We are interdependent to each other. In order to progress in

the society, there is need of peace and security. But with the development of society, we feel that
moral values are falling down.

(i) Historical Background

The idea of arrest and bail has been prevalent since old times. It has been in practice
in Britain and America since long. Our modern law dealing with crimes has been derived from old
English law. Due to delay in conclusion of trials due to shortage of judges, need was felt to free
undertrials from jail. There was practice of delivering the custody of an undertrial to a third party,
who took responsibility of producing him at the trial. In case of absence, said third party has to face
trial. But this system did not work for a long time, as it was too big a punishment for a person who
stood surety for the accused person. Over a time, this system was changed from security of life and
liberty to security of property and money.i

In ancient times, it was found that archaic humans who lived in the “ideal state of
nature” slowly converted themselves into small tribes, which is starting point of social control. It
would be an error to think that archaic man was happier because the existence of society had not
corrupted his inherent freedom of action. The non -availability of food, adverse environmental
conditions and the struggle for survival have compelled the men to form societies. Thus, it appears
that original men sought to escape from the original state of nature.

To protect the individual from fear, loneliness, uncertainty, and the unknown or
unexpected and more serious trends of the struggle for survival, society came into existence. Early
man’s desire was to overcome these dangers and not to lose basic freedom enjoyed in the absence of
control by society. Since the beginning, societal interests have been given dominance over individual
interest.

“With the Greeks, however in their maturity, is first met a legal system that is ocular,
that is, it is not conceived as a part of religion emanating from divine source.”

The system of bail in India has been borrowed from English and American Laws. In
those countries, there had been enough of research on the bail system, because of emphasis on
personal liberty. The borrowing of the bail system was needed in India because in the ancient India,
there is hardly any trace of such a system because pre-trial prisoners or under trials were rare, because
the trial had been always very quick and in most of the cases, fine used to be imposed. Sentence of jail
used to be in heinous offences only.
 In India, modern bail system has evolved through the years to protect the accused as
much as the victim. The aim of introducing the bail system was to secure the presence of accused
before the court. In India, bail is arranged through a relative or friend, whose viability is verified by
the court.ii

The crux of bail law is that it is the right of the accused to be enlarged on bail in
bailable offences and as such, it is neither dependent upon the discretion of the police nor of the
Court. Only condition, which the accused is required to fulfill is as to whether he is ready to seek bail
or not. Hence, in case of grant of bail, firstly, it is to be seen as to what kind of offence (bailable or
non bailable) has been committed by the accused. In case of bailable offence, bail is granted under
section 436 CrPC in ordinary course, without anything more to do, whereas, in case of non-bailable
offence, it is purely a matter of judicial discretion to be exercised by the Court in view of the
guidelines issued by the Superior Courts.

Non-bailable offence does not, however, mean that bail cannot be granted. Jail is not
the basic rule even in non-bailable offence also.iii

There is no provision for res-judicata in dealing with bail applications. Successive

bail applications may be filed even after its rejection by the court in the first or subsequent instances.iv

While rejecting bail application, court cannot order that accused be not released till
the disposal of the case on any term. Such direction is improperv.

(ii)Concept and Meaning of Bail

Unfortunately, the term ‘bail’ has neither been defined in the Code of Criminal
Procedure nor in any other Special statute. As such, its literal meaning is to be drawn and in that
sense, it means a security taken from accused for appearance in the Court to face trial.vi However,
offences have been classified as bailable and non bailable one, under Section 2(a) of CrPC which
provides for different criteria for grant of bail to an accused. The Chapter XXXIII of CrPC contains
provisions as to bail and bonds. Custody always precedes bail. In Narayan Prasad's case,vii the term
‘bail’ is defined as release of person from legal custody. As such, it is a security taken from an
accused to ensure his appearance to answer the charge before court of law.

In the interest of justice, accused is apprehended to ensure his presence before court
to face trial and to receive sentence or conviction. If without apprehension, the presence of an accused
is ensured before court during inquiry or trial, it would strike a balance between two opposite claims
namely, freedom of the individual and the interest of justice. Such balance is struck by the concept of
bail by ensuring the protection of liberty of an accused without jeopardizing purposes of
apprehension.
 Criminal Procedure Code does not define the term ‘bond’ also. Although it can be
understood by its literal meaning, In its literal meaning, as given in the Oxford Dictionary, the word
'bond' is meant by 'A deed binding a person to make payment to another'. Thus the dictionary meaning
of the term ‘bond’ is very helpful to understand the word. It can be said that the bond is an agreement
or deed which is binding upon the person executing it and binding himself by executing the same to
make payment to another. If we consider the law in practice, it is said that the bond is the document or
deed, furnished to the court by a person who guarantees the timely appearance of the accused or
under-trial before the court after grant of bail and fixes his liability to pay the certain amount as
directed by the court for the non-appearance and for the default, a recovery of the said amount may be
affected or the property of the same value may be forfeited. In this way, the bond fixes the liability
and make the surety responsible for the appearance of the person released on bail as well as to make
the payment of the amount guaranteed in the case of non-appearance or default.

In addition to it, the bonds also relate to the production of things or articles released by the court to the
person before the final decision of the case. Certain articles lying with the court may be released by
the court to the person, who seems to be its owner on furnishing the bonds to the satisfaction of the
court. Such release is called as 'superdari’ and such bond is called 'Superdaginama'. The rules apply to
such release are the same and similar to those applied to the bail-bonds.

(iii)Consideration For Grant Of Bail

Though, it is said that bail is discretion of the Court but it is also equally true that
discretion is always exercised by the Court on the sound judicial principles/guidelines issued by the
higher Courts. As such, while considering the request of bail of an accused, Courts are generally
required to weigh the factors mentioned as under:- (i) the nature of allegations,(ii) the gravity of the
punishment which could be awarded to an accused,(iii) chances of accused not to attend the Court to
face trial,(iv) charges of misusing the concession,(v) the character of the accused. viii Whether release
of accused from custody by granting him bail would advance or defeat the course of justice is also
required to be taken into consideration. Each case has its own merits/demerits, which are to be taken
into consideration for enlarging an accused on bail, as such, no general formula can be formulated. A
single circumstance cannot be treated as a deciding factor for grant or refusal of bail.

As stated above, the aim and object of bail is to ensure the presence of accused before
the Court to face trial.ix As such, prima-facie case is to be seen and mini trial by appreciating evidence
is not required to be conducted while considering the request of bail. As such, it is purely a concept of
exercise of judicial discretion on settled judicial principles by striking the balance between the liberty
of an accused and the interest of the society at large.x
 Where the offence committed by accused is serious one and evidence collected is
sufficient one to convict him, then it would be reasonable to presume that he would try to flee by
jumping bail so as to avoid trial and the consequential sentence. In such cases, grant of bail is not
advised. On the other hand, where chances of fleeing from justice are minimum, then refusal of bail
would be cruel and unjust. Thus, the concept of bail has to strike the balance between two opposite
interests, namely, on one hand, of guarding the public at large from the risk of it exposing to the
disaster of offender, and on the other hand, basic principle of criminal jurisprudence, viz. the
presumption of innocence of offender till he is found guilty.xi

Bail granted, without considering charge sheet / police report, can be set aside. The
court should have perused the charge sheet filed after conclusion of the investigation, before passing
the bail order. Having failed to do so, the order directing the release of an accused can be set aside.xii

When evidence against accused was only that of identification, and identification was
arranged after two months of occurrence, then the accused is entitled for bail.

Sometimes the question arises as to whether the severity of punishment is determined

in granting bail. Should the court decline bail in serious cases, where accused would attempt to escape
the trial? In the Bhagirath Singh case,xiii Supreme Court solved this issue by saying that "the only
material considerations in such a situation are whether the accused would be readily available for his
trial and whether he is likely to abuse the discretion granted in his favour by tampering with the
evidence. Even where a prima facie case is established, the approach of the court in the matter of bail
is not that the accused should be detained by way of punishment but whether the presence of the
accused to trial and his chances of abuse with the process. So, the deprivation of freedom by refusal of
bail is not for punitive purpose but for the bi-focal interest of justice, to the individual involved and
society affected".

Ordinarily, enlargement of a co-accused on bail would be sufficient ground for not

denying similar concession to other co- accused, provided that the nature of accusation and
availability of evidence is also similar and in the matter of other consideration such as age, likelihood
of accused facing the trial etc. also, the cases are similar. Otherwise, it cannot be followed as a matter
of rule that the enlargement of co-accused on bail should implicitly bind the court in enlarging other
co-accused on bail.xiv

An earlier illegal detention is no ground for ordering bail. The detained accused may
seek habeas corpus or other remedies as are available at law, but not bail.xv

There are few grounds which are common to be considered for grant of bail under
Section 437(1) and 439(1) CrPC, which are reproduced as under:-
 Seriousness of the offence and the mode and manner of commission of offence.

 Chances of accused fleeing away from justice.

 Expectation of society that persons accused of commission of horrifying offences should not
roam free.

 Chances of intimidating witnesses by the accused if released on bail and tinkering with
evidence.

 Progress of investigation.

 Societal position of accused in comparison to the victims and witnesses.xvi

In India, an accusatorial system is being followed, where an accused is presumed

innocent until proved otherwise. Only after trial, accused is held guilty. While granting bail, the
presumption of innocence till found guilty cannot be taken into consideration.xvii The above-
mentioned grounds need to be kept in mind by the Judges while exercising the judicial discretion for
grant of bail.

(iv)Justification

Detention of an under trial cannot be justified in any way. The accused, in case of
denial of bail, shall carry a social stigma in the society and shall face many problems to prove himself
innocent. As such, denial of bail shall entail serious consequences and shall go against the spirit of
Article 14 and 21 of Constitution of India and against all settled principles of natural justice.

To secure the presence of accused before the Court to face trial, the concept of bail
was introduced. From various studies, it has been found that out of 2000 accused persons released on
bail, less than 1% have failed to comply with the terms of bail.

During the course of trial, accused has to put his defense to prove his innocence.
Releasing the accused on bail would facilitate him to put his defense in a better way, otherwise, the
burden of proving his innocence would be left on the shoulders of the friends and family members and
it will also spoil his carrier. Denial of bail would put financial burden on the govt. also as in jail,
accused persons are to be provided food, clothing and medical treatment at the govt. expenses.
Therefore, the accused persons, who have standing in society and whose chances to flee from trial are
very less, are entitled to the relief of bail from Courts. As such, due procedure established by the law
of land is required to be followed for depriving an accused from his personal liberty. xviii

(a)Article 21 of Constitution of India and Right of Bail:

While interpreting Article 21 of Constitution, Hon’ble Apex Court has declared bail
as a substantive fundamental right. The procedure to grant bail is generally governed by the principles
enunciated by Hon’ble Apex Court while interpreting Articles 21 and 22 of the Constitution. As such,
bail is not simply a matter of discretion but of the right of accused also.xix

In the Joginder Kumar case,xx the Supreme Court in the realm of Article 21 and 22 has held
that "it is the duty of the police to inform him about the right of bail when the arrestee is brought to
police station. Personal liberty under Article 21 is too precious value and the power to negate it should
be exercised not casually but judicially, with lively concern to the individual and the community.
Under Article 21, deprivation of liberty is a matter of grave concern and permissible only when the
law authorizing it is reasonable and geared to the goals of the society. So personal liberty can be
curbed by a procedure established by law and CrPC 1973 is one such procedure and by considering to
what is in the interest of society and what is against".

The right of personal liberty guaranteed by Article 21 cannot be curtailed unless the circumstances so
require. In the Gyan Prakash case,xxi accused was behind the bars for 25 months, but prosecution
examined only 11 witnesses out of 25. Such approach of trial court is careless and casual. So, the
accused here entitled to bail on furnishing personal bond and sureties to the satisfaction of the court.

(b)Liberalization of Bail System

In India, the condition and status of all citizens are not same. The citizens of India
include a farmer, butcher, a pavement dweller, a laborer, a govt. employee and an industrialist. Is it
justifiable to fix the same amount of surety and other terms of bail equally for all people? In Moti
Ram's case,xxii the Court directed the accused, a poor mason to furnish sureties for Rs. 10,000/-. To
demand local sureties has further made the matter complicated. While deprecating the conduct of
Court, Hon’ble Apex Court has observed that "It shocks one's conscience to ask a mason like person
to furnish sureties of Rs. 10, 000/-. 'We the people of India' includes a butcher, a mason and a
pavement dweller also. And the bail in India covers both releases on one's own bond with or without
surety. When surety should be demanded and what sum should be insisted on, are dependent on
variables.

The best guarantee of presence in the court is the reach of law, not the monetary tag.
Moreover, the accused should not have been kept in jail simply because he could not have huge sum
to pay as surety. A person will not stay in jail just because he is poor. If the bail otherwise be granted,
it will be granted, because the principal purpose is to ensure attendance, not the money satisfaction of
the court. So, the pre-trial release on personal bond i.e. without surety, should be allowed where the
person to be released on bail, is an indigent person and there is no risk of his absconding.

(c)Bail is the Rule, Jail is Exception

The normal rule is bail and not the jail. The principal purpose of bail is to ensure that
an accused will return for trial if he is released after arrest. At the pre-trial stage, every accused person
is presumed to be innocent until the matter is finally disposed of by a competent court. Simply
because a person has been charged with an alleged offence, he does not lose his right to protection to
life and personal liberty. He has till the final disposal of the case against him, the same right as
enjoyed by any other citizen under the Constitution of India and other provisions of law of the land.
That's why the High Courts and Supreme Court have held that grant of bail is a rule and refusal is an
exception.xxiii

However pre-trial detention has a purpose and policy behind it and the issue of bail
must be decided on relevant criteria and not on emotional appeals. The paramount consideration that
prevails with the court is to see that the accused does not outlaw him to make it difficult for the justice
being visited upon him. As a normal, rule is bail, not jail, but in serious cases like tax evasion of high
value, jail and not bail is the rule.xxiv

The law with regard to grant or refusal of bail has been more developed more by
courts than the legislature. And from the judgments delivered by various High Courts and Supreme
Court of India, it is now clear that inclination should be in favour of bail and not jail. Supreme Court,
in various judgments, time and again has sounded a word of caution and warning to the courts
subordinate to it that the judges should be very slow and careful before they refuse the bail in non-
bailable offences. The basic purpose of setting an accused person at liberty is that his fundamental
right to life and liberty should not be curtailed unnecessarily. If courts are satisfied that the accused
person will participate in the trial and will not abscond or tamper with the evidence, bail should
invariably be granted.xxv

(d) Arrest.

The word “arrest” is derived from the French word ‘Arrester’ meaning ‘to stop or
stay’ and signifies a restrain of the person. …....” In general parlence, the word ‘arrest’ suggests the
apprehension or restrain or taking away one’s personal liberty. A person is said to be arrested only
when he has been prohibited to go wherever he pleases. Legally speaking, an ‘arrest’ signifies the
exercise of authority of law for taking a person into custody, with the aim of producing him before
court to face trial. The term 'arrest' in the above sense signifies that the seizure or detention of the
person must be accompanied with authority of law.

Thus, as per Code, not only a police officer and, a Magistrate but private persons also, have been
empowered to effect arrest under certain circumstances. The custody is always preceded by arrest. As
such, the arrest is always followed by custody. In other words, it can be said that whenever an accused
person is arrested or surrender and is produced before the Court of law, then said person is remanded
to judicial/police custody. At this stage, it has emerged that every arrest includes custody but not vice-
versa. As such, both the words “custody’ and ‘arrest’ do not convey the same meaning. Though,
‘custody’ may amount to an arrest in certain circumstances but not under all circumstances.
(e) Remand

In the Code, the term “remand’ has not been explained. The Section 157 and 167 of the Code,
were introduced in the Court to ensure that the accused, who has been arrested be produced before
magistrate without delay, so as to enable the later to hear the accused and then to decide whether
further custody is required or not. As such, these provisions are aimed at to stop the misuse of power
by police by using third degree methods in order to unravel the crime.

As such, Sections 167, 209 and 309 contain the scheme of remand. During pendency
of investigation, custody of an accused is dealt with by section 167. Similarly, during pendency of
Commitment Proceedings, custody of an accused is dealt with by Section 209, whereas, during
pendency of trial or enquiry, custody of an accused is dealt with by Section 309(2).

(1) Guidelines regarding remand.

-Just on arrest of an accused by police officer, the period of 24 hours starts to run.

-From the first date of custody of an accused granted by Court, the fifteen days time is to be
counted.

-If the accused is juvenile, his age is to be ascertained and if it is found that he is juvenile,
then, he be directed to be produced before Juvenile Justice Board.

As per section 167(2) of code, during the period of first fifteen days, the custody of an
accused can be converted from police to judicial and vice-versa.xxvi

(2) Remand to police custody.

- Police custody of an accused can be granted by the Magistrate only during the
first 15 days and not thereafter.

- When a Magistrate remands a person to police custody, he has to

conform to three conditions. These are as under :-

- That police custody cannot be granted beyond the first 15 days of remand.

- That while granting police remand, Magistrate is required to record the reasons and
to peruse the case diary and statements of witnesses recorded under Section 161 CrPC.

- That it is obligatory for the Magistrate to send the copy of order of remand to the
Chief Judicial Magistrate.

- As such, at the stage of remand, Magistrate is required to peruse the police

record as well as the other evidence collected during the course of investigation for
forming opinion whether extension of remand is required or not.
(3) Bail.

- Police custody in bailable offence.

Offences have been classified as bailable and non bailable one. Bail is right of
accused in case of bailable offences. He can be sent to judicial custody only when he has failed to
furnish the bonds.

In sessions triable cases, magistrate has no power to discharge accused, as held by the
Hon’ble Apex Court in number of Judgments.xxvii

Bail in bailable offence.

Though the term ‘bail’ has not been defined in the Code of Criminal Procedure, but
on the basis of use of term ‘bail’, the offences have been classified into two categories, one is bailable
offences and other is non bailable offences. This classification has been done under Section 2 (a) of
CrPC. Bail is right of accused in case of bailable offences. Authorities were bound to inform the
accused about his right to be released on bail, in case of bailable offences. As such, bail in cases of
bailable offences is not subjected to any judicial discretion. In case of bailable offences, after passing
of an order of bail, if accused fails to furnish surety bond, then he can be released on personal bond
and merely on non-furnishing of surety bond, he cannot be sent to judicial custodyxxviii.

In Rasik Lal’s casexxix the Apex Court explained the law on bail in bailable offences as under:-

“The position of persons accused of non-bailable offence is entirely different. The

right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and
indefeasible right. In bailable offences there is no question of discretion in granting bail as the words
of Section 436 are imperative. The only choice available to the office or the court is as between taking
a simple recognizance of the accused and demanding security with surety. The persons contemplated
by Section 436 cannot be taken into custody unless they are unable or willing to offer bail or to
execute personal bonds. There is no manner of doubt that bail in a bailable offence can be claimed by
accused as of right and the officer or the court, as the case may be, is bound to release the accused on
bail if he is willing to abide by reasonable conditions which may be imposed on him.”

Bail under Section 436A.

Nowadays the number of cases has been reported in print social media where under
trial prisoners have remained detained in jail for the period beyond the maximum period of
imprisonment provided for the alleged offence. In order to curb this menace, the legislature in its
wisdom has inserted a new section 436A in the Code of Criminal Procedure. It provides that “where a
person has, during the period of investigation, inquiry or trial under this Code of an offence under any
law (not being an offence for which the punishment of death has been specified as one of the
punishments under that law) undergone detention for a period extending up to one-half of the
maximum period of imprisonment specified for that offence under that law, he shall be released by the
Court on personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of
investigation, inquiry or trial for more than the maximum period of imprisonment provided for the
said offence under that law”.

Bail in non-bailable offences

Neither the term ‘bail’ nor the term ‘non bailable offence’ have been defined in the
Code of Criminal Procedure. However, criteria for grant of bail have been made the basis for
classification of offences into the categories of bailable offences and non bailable offences. As
discussed above, bail is right of an accused in bailable offences.

However, there is a provision under Section 437 of Code of Criminal Procedure wherein
circumstances have been mentioned when bail may be taken in case of non bailable offences. Section
437 (3) elaborates the conditions set by the law to get bail in non-bailable offenses, which says that
“when a person accused or suspected of the commission of an offence punishable with imprisonment
which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter
XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any
such offence, is released on bail under sub-section (1), the Courts shall impose the conditions:-

(a) That such person shall attend in accordance with the conditions of the bond executed
under this Chapter,

(b) That such person shall not commit an offence similar to the offence of which he is
accused or of the commission of which he is suspected and

(c) That such person shall not directly or indirectly make any inducement, threat or promise to
any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to
the Court or to any police officer or tamper with the evidence, any may also impose, in the interests of
justice, such other conditions as it considers necessary”.

In India, bail system is quite unreasonable, unjust and unfair. No special provision
has been made for grant of bail to a poor person. Following authorities reflect upon the unjust nature
of bail system in India.

In the Balchand case,xxx it was observed that “Trial Court convicted the accused. In
appeal, he was acquitted. In SLP, the Hon'ble Supreme Court under Art. 136 of the Constitution has
directed the accused to surrender before the court. He then filed for bail. It was then for the first time
that Justice Krishna Iyer raised his voice against this unfair system of bail administration. He said that
though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It
may well be that in most cases, an undertaking would serve the purpose”.
 In the Moti Ram case,xxxi it was observed that “the accused who was a poor mason
was convicted. The apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate
to enlarge him on bail, without making any specifications as to sureties, bonds etc. The CJM assumed
full authority on the matter and fixed Rs. 10,000 as surety bond and further refused to allow his
brother to become a surety as his property was in the adjoining village. Moti Ram went on appeal
once more to the apex court and Justice Krishna Iyer condemned the act of the CJM, and said that the
judges should be more inclined towards bail and not jail”.

In the Maneka Gandhi case,xxxii “Justice Krishna Iyer once again spoke against the
unfair system of bail that was prevailing in India. No definition of bail has been given in the code,
although the offences are classified as bailable and non-bailable. Further Justice P.N.Bhagwati also
spoke about how unfair and discriminatory the bail system is when looked at from the economic
criteria of a person this discrimination arises even if the amount of bail fixed by the magistrates isn't
high for some, but a large majority of those who are brought before the courts in criminal cases are so
poor that they would find it difficult to furnish bail even if it's a small amount”.

Further in Hussainara Khatoon and others case,xxxiii the Court laid down the ratio
that “when the man is in jail for a period longer than the sentence he is liable for, then he should be
released”.

Default Bail

The concept of ‘default bail’ is an offshoot of failure of police to conclude the

investigation within the stipulated time. In the Code of Criminal Procedure, Proviso (a) to S. 167(2)
deals with default bail. It provides that bail granted to an accused under Section 167(2) CrPC is quite
akin to the bail granted by High Court or the Court of Session by exercising special powers under
Section 439 of CrPC. The proceedings subsequent to the grant of default bail are governed by the
provisions of Chapter XXXIII of CrPC in regard to bail bonds, cancellation of bail etc. As such,
subsequent filing of challan cannot be taken into consideration for cancellation of bail. The filing of
charge sheet is not in itself a valid ground for the cancellation of bail. However, by exercising special
powers, High Court or Court of Session can cancel the bail and can commit the accused to custody.

Re-Arrest:

The arrest is followed by custody and custody is followed by bail, if granted by

Court. The question of re-arrest comes into picture only when the bail already granted to an accused is
cancelled by competent Court of Law by following the principles of law enunciated by the Higher
Courts in this regard. As such, re-arrest took place only on cancellation of bail is the general rule but
there are few exceptions also where accused can be re-arrested without cancellation of bail. Said
exceptions are mentioned as follows:-
(1) If an accused has been released on bail for a minor offence and during further investigation, it
was found that accused has committed aggravated offence, then in that circumstance, accused can be
re-arrested on addition of aggravated offence without cancellation of bail already granted under a
minor offence.

(2) If accused has been released on bail in a bailable offence, and during further course of
investigation, he has been found to have committed non bailable offence then said accused can be re-
arrested without cancellation of bail granted in bailable offence.

In the case of Mithabhai Pashabhai Patelxxxiv and others, it was observed by the court that
“the accused who has been granted bail cannot be taken into police custody for further investigation
unless bail is cancelled. This is the general rule but there can be exceptions to these rules as well as
discussed above”.

B. Research Problem :-

Arrest in India is made in routine and therefore, it is a violation of basic freedoms of

an individual. Arrest, therefore, must be made in exceptional cases as per provisions of the law. It is,
therefore, an important issue as to when arrest of an accused person can be made? Further, it is also to
be seen as to whether the Arresting Authority, has followed the due procedure of law or not while
effecting arrest? Therefore, an enquiry must be conducted regarding use and misuse of law relating to
arrest and as to what are the consequential and remedial measures available to an accused, who has
been arrested unlawfully.

It is generally seen that Investigating Agency request for remand for the purpose of
justifying the recovery of articles already effected connected with the offence as well as for extracting
confessions and for satisfying the ego of the society at large/litigants. However, prima-facie, there is
no need to seek and grant remand in routine for the purpose of completion of investigation. Therefore,
efforts are required to be made during the course of research to study and examine the situations and
circumstances, when remand may be granted.

Denial of bail is an exception to the general rule of Bail. The concept of bail is one of
the most controversial issues in the administration of justice. Bail, generally, is a rule. Its object is not
punitive but merely to secure presence of accused to abide by the sentence to be imposed by the court.
However, the Courts, while granting bail, are required to consider, among other circumstances, the
factors such as: (a) the evidence collected during investigation, nature of offence committed and
gravity of punishment; (b) chances of tinkering with evidence (c) threat to the complainant and
witnesses; and (d) chances of absconding from the court proceedings (e) impact of offence on the
society at large (f) threat to general law and order situation. Therefore, an enquiry is required to be
conducted to find out as to whether the provisions of grant of bail in non-bailable offences are being
adhered to strictly or not by the courts of law as well as to find out as to what are the consequential
remedial measures available to an accused, who has been denied bail in violation of provisions of
grant of bail.

C. Objectives of the Study

The present search is being carried out to explore, understand and to analyze an
overall picture of the judicial trends in respect of arrest, remand and bail at national level. The
objectives of the present study are as under:-

(i) To examine the historical and prospective aspect of arrest,

remand and bail.

(ii)To examine the provisions governing the aspect of arrest,

remand and bail as well.

(iii) To examine the relevant provisions of different laws

including CrPC, Constitution of India, pertaining to arrest, remand and
bail.

(iv)To examine the power of the Courts in granting bail in non-

bailable offences.

(v)To find out the reasons for postponement of proceedings

especially in the matter of bail.

(vi)To study the judicial approach relating to grant of bail in non-

bailable offences.

(vii) To critically examine the role of judiciary in granting

remand of an accused in respect of certain categories of offences.

(viii) To study judicial pronouncements relating to grant of

anticipatory bail to the accused person.

D. HYPOTHESIS

(i) There is a general feeling among the public at large that provisions of grant of bail in
non-bailable cases are often misused.

(ii) Remand by police is generally sought just to extract confessions by adopting coercive
methods.

(iii) It is generally felt that the police investigation is mostly tainted, not fair and always
influenced by extraneous factors viz. corruption, political influence etc.

(iv) The Courts have almost no practical control over the conduct of the police officers,
who execute the process of arrest and remand.
E. Research Methodology

The present study is non-empirical or doctrinal, which warrants use of primary and secondary data.
The primary source of data of present study include the internal instrument i.e. conventions, treaties
etc. and International Law. The secondary sources include the books, research papers, articles,
editorials and commentaries published in research papers, articles, editorials and commentaries
published in various magazines, journals and newspapers. The historical, comparatives and
analytical approach will be applied to the existing laws for its interpretation. More emphasis will be
laid on judicial precedents all over the India to examine the concept of arrest, remand and bail.