Abstract

Criminal Justice System in India is generally gigantic and arduous bestowed with myriad goals. The concept of Bail in criminal justice system has become increasingly elusive, insurmountable, and enigmatic. Refusing to grant bail to jailed accused is a grave violation of liberty of an individual and undermines the legality as well as the legitimacy of the justice system. The code doesn’t provide the exhaustive list of the conditions, rather it depends upon the judicial discretion of the court. The real challenge before the criminal justice system is the overreach of the State. Bail is germane to criminal justice system to accomplish the object of the Code of Criminal Procedure – Fair Trail and Justice. From this vantage, the paper seeks to analyse the jurisprudence of bail. The object of this paper is to give an overview of the jurisprudence of Bail including history of bail and provisions relating to the bail in the Code of Civil Procedure, but does not look at specific legislation. We then explain the golden principle followed in India – Firstly, presumption of innocence till the guilt is proved beyond reasonable doubt and Secondly, the onus of proving the offence does not shift upon the accused. We then analyse the grant of bail as rule while using the historical precedents. We also explain how unbridled discretion operates in case of bail along with the test laid down by the Apex Court for guiding discretion by courts. The authors also give an insight into challenges before the judiciary with regard to bail. Last but not least, we also analyse a possible first step to remedy this situation – Bail Law. We conclude with the observations in support of just system of bail. Just System is a system in which court provide services rather than onerous conditions and ensure that citizens are not wiped-out unconstitutional principles.

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