The Supreme Court has recently expressed its displeasure on the prolonged delay in adjudication of bail applications in various Courts of the country in the case of Anna Waman Bhalerao vs State of Maharashtra (2025)1 and has set a time-limit of two (2) months to dispose pending bail applications with the observation that the prolonged delay in disposal of bail and anticipatory bail applications not only frustrates the object of the Code of Criminal Procedure but also amounts to denial of justice and compromises with the constitutional ethos under the Article 14 and 21 of the Constitution.

The displeasure and anguish of the Hon’ble Supreme Court over the delay in disposal of the pending bail application is not a novel event but has happened in past as well when the Hon’ble Apex Court was compelled to lay down guidelines in order to ensure speedy disposal of pending bail and anticipatory bail applications and one such being the case of Satendra Kumar Antil vs Central Bureau of Investigation (2022)2 wherein the Hon’ble Apex Court gave elaborate guidelines and directed that anticipatory and regular bail applications must be decided within a period of 1 week to 4 weeks except in exceptional cases. Undoubtedly, the prolonged period incarcerations and period of disposal frustrate the essence of the fundamental rights as enshrined under the Article 14 and 21 of the Indian Constitution but there is no one single cause for such frustration.

The Bail Jurisprudence

The concept of bail emerges from the tenets of personal liberty of the individual. In the past bail was once utilized to secure the release of Socrates by Plato in 399 BC upon a bond. The law on bail as prevalent today traces its roots in the English law from a series of laws most importantly being the Magna Carta of 1215 which propounded that no man shall be imprisoned without having being judged by his peers based on the law of the land.

The term bail was not been defined in the precursor to the present Bhartiya Nagrik Suraksha Samhita (BNSS) but finds place in the Section 2(1)(b) of the present criminal procedure code [BNSS] wherein the accused or suspect may be released from custody upon imposition of certain conditions and upon execution of a personal bond or bail bond. The legal luminary Justice V.R. Krishna Iyer has rightly stated that “The issue of bail 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.” Justice Iyer in the case of Moti Ram & Ors. vs State of Madhya Pradesh (1978)3 opined that the Courts must be inclined towards bail and not jail. The provision of bail has been elaborated in the case of Sanjay Chandra vs Central Bureau of Investigation (2012)4 wherein it has been opined by the Hon’ble Apex Court that the question of bail is one of personal liberty and the pre-trial arrest can only be made when the same satisfies the test of necessity and cannot be resorted to as a punitive measure merely out of apprehensions or public pressure otherwise it shall contradict the constitutional guarantee of personal liberty as enshrined under the Article 21 of the Constitution.

The primary purpose of bail is to impose certain conditions and to ensure the accused’s cooperation and presence during trial and since the Indian Criminal Law follows the adversarial legal system which gives the accused the benefit of presumption of innocence until proven guilty therefore pre-trial arrest or causing prolonged delay in disposal is not merited as it attacks the constitutional scheme vis-à-vis personal liberty.

The plight of undertrial prisoners

The Prison Statistics India Report (2023)5 reflects that there is a staggering number of 3,84,743 undertrial prisoners constituting 73.5% of the total prison population in India as in the year 2023 with the maximum number of inmates being in the State of Uttar Pradesh. The Daksh High Court Data Portal6 shows that around 40% of bail applications and 60% of anticipatory bail applications took more than one (1) month to be decided. The portal also shows that 56% pending bail applications and 48% of the anticipatory bail applications remained in pendency for more than a year. The overpopulated prisons are ailing and its undertrial inmates are looking at the Judiciary with hope to cure the malady of prolonged detention caused by delay in bail disposal. It was held

in the landmark case of Hussainara Khatoon vs Home Secretary, State of Bihar (1979)7 that the undertrials have a right to speedy trial under the ambit of Article 21 which would mean speedy justice becomes a part of the fundamental rights under the constitutional scheme.

The Pressing Question

The liberty of an individual cannot be tampered with unless the same has legal sanction but the imposition of such legal sanction to curb personal liberty must be coupled with justice, equity, good conscience, reasonableness and fairness towards the concerned individual. Lack of a practicable, just procedure and framework disconcerts the constitutional spirit and ethos. The present dismay of the Hon’ble Apex Court can be attributed to the lack of conformity by the Session Courts to the judicial principles of bail adjudication in the form of catena of judicial precedents meant to guide the judicial discretion. The moot question is not whether there is legal scope of timely disposal of bail pendency but does the legal machinery observe the scope as provided by the law. The reluctance of Sessions Courts in allowing bail applications despite a prima facie fit case for bail being made out, is one such factor that causes overburdened High Courts which are already functioning beyond their human capacity. The statistics of Department of Justice (GOI) reflect that there is a vacancy of 330 posts in the various High Courts of the country8. The present strength of Judges of the various High Courts is assiduously functioning beyond human capability but in order to effectively address the quagmire of bail pendency further judicial appointments become crucial when fresh bail applications are being filed at every passing moment. Mechanical acceptance of remands/pre-trial arrests by the Judicial Magistrates as a norm must be discouraged and there ought to be reason, circumspection and judgement involved in the same. The notion based on constitutional values that “Bail is the rule and jail exception” can only materialize when the institutions being the building blocks are compliant to the constitutional spirit and are equipped to materialize the notion in its true spirit.

(Views expressed are personal)

Written By –

Aditya Vikram Singh

Advocate,

Allahabad High Court, Lucknow Bench, Lucknow Contact – 9673366025 |