“Bail or jail?”- at the pre-trial or post- conviction stage-belongs to the blurred area of the criminal justice system and largely binges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.

To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of ‘procedure established by law’. The last four words of Art. 21 are the life of that human right. The doctrine of Police Power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.

The judicial discretion

What, then, is ‘judicial discretion’ in this bail context?

In the elegant words of Benjamin Cardozo.

“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined. by system, and subordinated to ‘the primordial necessity of order in the social life. Wide enough in all conscience is the, field of discretion that remains.”

Even so it is useful to notice the tart terms of Lord Camden that ‘the discretion of a judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is often times caprice; in the worst, it is every vice, folly and passion to which human nature is liable . . .”

Some jurists have regarded the term ‘judicial discretion’ as a misnomer. Nevertheless, the vesting of discretion is the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that “discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular.

“An appeal to a judge’s discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to, but in accordance with, established principles of law.”

Relevant criteria for grant or refusal of bail

Having grasped the core concept of judicial discretion and the constitutional perspective in which the court must operate public policy by a restraint on liberty, we have to proceed to see what are the relevant criteria for grant or refusal of bail in the case of a person who has either been convicted and has appealed or one whose conviction has been set aside but leave has been granted by supreme Court to appeal against the acquittal.

What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said:

“I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial.”

This theme was developed by Lord Russel of Killowen C.J., when he charged the grand jury at Salisbury Assizes, 1899:

‘it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear, for their circumstances were such as to tie them to the place where they carried on their work. They had not the golden wings with which to fly from justice.”

In Archbold it is stated that,

“The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial…. The test should be applied by reference to the following considerations:

(1) The nature of the accusation.

(2) The nature of the evidence in support of the accusation.

(3) The severity of the punishment which conviction will entail…

(4) Whether the sureties are independent, or indemnified by the accused person. . …. “

Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Art. 21 and 19 before following diffuse observations and practices in the English system.

The principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case.

Vital factors

It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. Another relevant factor is as to whether the, course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being.

Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail.

Bail discretion

In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the, bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence. about the criminal record of a defendant, is therefore not an exercise in irrelevance. The significance and sweep of Art. 21 make the deprivation of liberty ‘a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art. 19.

Reasonableness postulates intelligent care and predicates that deprivation of freedom- by refusal of bail is not for punitive purpose but for the bi-focal interests of justice-to the individual involved and society affected. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence, of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody.

Public and individual justice

The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on. the inhuman, of our sub jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a Policy favouring release justly sensible. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law.

Fleeting justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even, through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offence while on judicially sanctioned ‘free enterprise,’ should be provided against. No seeker of justice shall play confidence tricks on the court or community.

Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the court into a cornplacent refusal. Realism is a component of humanism which is the heart of the legal system. We come across cases where parties have already suffered 3, 4 and in one case (the other day it was unearthed) over 10 years in prison. These persons may perhaps be acquitted-difficult to guess. If they are, the injustice of innocence long in rigorous incarceration inflicted by the protraction of curial processes, is an irrevocable injury. And, taking a pragmatic view, while life imprisonment may, in law, last a whole life, in practice it hardly survives ten years, thanks to rules of remission.

Thus, at the worst, the prisoner may have to sere some more years, and, at the best, law is vicariously guilty of dilatory deprivation of citizen’s liberty, a consummation vigilantly to be vetoed. So, a circumstance of some consequence, when considering a motion for bail, is the period in prison already spent and the prospect of the appeal being delayed for hearing, having regard to the suffocating crowd of dockets pressing before the few Benches. It is not out of place to mention that if the State takes up a flexible attitude it may be possible to permit long spells of parole, under controlled conditions, so that fear that the full freedom if bailed out, might be abused, may be eliminated by this experimental measure, punctuated by reversion to prison.

Unremitting insulation in the harsh and hardened company of prisoners leads to many unmentionable vices that humanizing interludes of parole are part of the compassionate constitutionalism of our system. The basics being thus illuminated, we have to apply them to the tangled knot of specifics projected by each case. The delicate light of the law favours release unless countered by the negative criteria necessitating that course. The coffective instinct of the law plays upon release orders by strapping on to them protective and curative conditions.

The potentiality of community peace being disturbed should therefore be obviated by proper safeguards.


As analysed by Justice Krishna Iyer in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra pradesh:1978 AIR 429, 1978 SCR (2) 371