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Bail and Discharge: Various Guidelines by The Hon’ble Supreme Court

Updated: Feb 20, 2022

Written by: Debapriya Dey


· Introduction

· Bail

· Types of Bail

· Judicial Analysis

· Analysis of Obligatory Judicial Guidelines in Granting Bail

· Discharge

· Analysis of Obligatory Judicial Guidelines concerning Discharge


The legal principle, “Bail is a rule, jail is an exception”, is an important principle, laid down by the Supreme Court of India in a landmark judgement in the matter of State of Rajasthan v. Balchand alias Baliya in 1978. This landmark case revolved around various concerns that were raised regarding fundamental rights guaranteed to an individual by the virtue of Article 21 of The Constitution of India. Article 21 read as “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” The cardinal thought of this article is that the freedom of an individual is the important right he can have. But the concern raised in this case speaks of detention as an infringement of Article 21. And that’s where the concept of Bail is introduced through the provisions of Section 436, 437, 438 and 439 of the Criminal Procedure Code, 1973.[1]


Criminal Procedure Code, 1973, doesn’t expressly define the term ‘bail', although the terms ‘bailable offence’ and ‘non-bailable offence’ have been defined in section 2(a) Cr.P.C. Bail in simple words can be explained as a surety of the appearance of an accused in front of the judiciary during his trial. The main intent of granting bail is to ensure the appearance of the accused in the court. Bail is granted to individuals who have been detained or are apprehending a detention and various sections of the CrPC provide statutory rights to such individuals. However, the bail reform in India works as per two facets that is one being Judicial Discretion and Monetary Bond.

Types of Bail:

Bail mainly is of three types:

(a) Mandatory Bail: Section 436 of the CrPC states about pre-requisites of bail when the accused is charged with a bailable offence. Through this provision, it is ensured that the person arrested without the warrant of the officer of the court, the person shall be released on bail. The discretion of the court to grant or not grant bail does not apply here, in the light of it being a ‘shall’ provision.

(b) Discretionary Bail: Now under section 437 of CrPC, it is stated that under certain conditions bail may be taken for a Non-Bailable offence however it is a trivial provision. In simpler terms, the court under section 437 intends the power to use its mind while determining whether the accused person should be enlarged on bail of not. Section 439 empowers the Court of Session and High Court to grant bail in a few particular situations.

(c) Anticipatory Bail: Section 438 gives the right to an accused to seek anticipatory bail if and when he is apprehending a detention. The nature of the bail granted under this particular section is quite different from the other two mentioned above. Nevertheless, the power of the court to exercise its discretion to grant such bail is the same.

Analysis of Obligatory Judicial Guidelines in Granting Bail:

The Hon’ble Supreme Court of India and the Hon’ble High Court of Bombay have provided for various guidelines in their respective heard cases in relation to the grant of bail.

· In the case of State of Rajasthan, Jaipur vs Balchand @ Baliay,[2] the court held, “the common rule is bail, not jail. Provided, where there are such circumstances that suggest fleeing from justice or thwarting the course of justice or creation of any other troubles in the shape of repeating offences or even intimidation of witnesses. Herein, Krishnaiyer, V.R. J. observed that in case of considering the question of bail, the gravity of the offence committed and the brutality of the crime plays an important role.”

· In a landmark judgement of Siddharam Satlingappa Mhetre v. State of Maharashtra,[3] the court stated, “the importance of the Right to life and liberty guaranteed under Article 21 of the Constitution of India is of utmost importance. Section 438 of the CrPC must be read in the light of Article 21 where granting or refusing of bail must reflect a perfect balance of sanctity of an individual’s liberty and the interest of the society.”

· In the case of Gurbaksh Singh Sibbia v. State of Punjab (1980),[4] the apex court held, “Section 438 of the CrPC must be used very sparingly and in exceptional cases only. However, the discretion of the court to grant bail cannot be limited just because the offence is punishable with life imprisonment or the death penalty. Additionally, the court held that the bail should not be limited by time, however, the court can impose reasonable restrictions on the basis of the circumstances and the facts of the case.”

· The case of Salauddin Abdulsamad Shaikh v. State of Maharashtra (1995)[5] overruled the judgement passed in the case of Gurbaksh Singh Sibbia and held “the grant of anticipatory bail should be limited by time. The court held that the anticipatory bail must be granted for a limited period, on the expiration of which the matter must be left to the regular court for decision.”

· In the case of Hussainara Khatoon and others v. Home Sec, State of Bihar[6],the Court observed, “the ratio that when the man is in jail for a period longer than the sentence, he is actually liable for then he should be released.”

· In the Supreme Court case of Moti Ram v. State of Madhya Pradesh,[7] Justice V. R. Krishna Iyer identified the issue, “that unreasonably high sureties as a human rights problem. The court then suggested that surety amounts be determined by considering relevant variables such as the socio-economic location of the accused person.”

· In the landmark judgement of Sushila Aggarwal & Ors. V. State (NCT of Delhi) & Ors. (2020),[8] the court held, “the protection under Section 438 of the CrPC cannot be invariably limited to a fixed time. However, depending on the facts of the case, the courts may impose certain conditions and time limit while granting bail. Additionally, the court held that the protection provided by an anticipatory bail does not end when the accused is summoned, or charges are framed. It can be continued until the trial ends. However, if the circumstances of the case require a fixed time limit or imposition of certain conditions, then, the court can impose the same.”

Keeping aside the above judicial precedents, the Supreme Court of India and various other High Courts also additionally established procedures that make the efforts of interpreting these provisions in a simpler manner.


The general criminal justice prompts the appearance of the accused in the concerned court after the police investigation is over and the final charge sheet is prepared U/s 173. But there is another provision through which an accused can escape trial procedures brought against him. The accused can resort to the provisions of Section 227 and 239 if certain criteria are satisfied.

Section 227 states,

“If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”.

And Section 239 states,

“When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing”.

Analysis of Obligatory Judicial Guidelines to be observed in relation to Discharge:

As per Section 227 of the Code, the magistrate should ensure that there is no sufficient ground for proceeding. This means that no prudent person would able to conclude as to why the case shouldn’t escalate further into trial. And to decide that, the court usually checks for the reputability of the materials on record. Because only sufficient material grounds would result in the conviction of the accused. Now various other postulations have been offered by the Hon’ble Supreme Court and the Bombay High Court in relation to this matter through their respective verdicts. They are observed in the following listed cases:

· In the case of Satish Mehra v. Delhi Administration and Another,[9] the Hon’ble Supreme Court held, “if the accused produces any convincing material at the stage framing of charge which might drastically affect the very sustainability of the case, it would be unfair to suggest that no such material is considered into by the court at that stage. It was held that the main motive of granting a chance to the accused of making submissions as envisaged in Section 227 of the CrPC, is to assist the court to determine whether it is required to proceed to conduct the trial. It was also observed that nothing in the Code limits the ambit of such hearing to oral arguments only and, therefore, the trial court can consider the material produced by the accused at the stage observed under Section 227 of the Code.”

· In the case of P. Viswanathan Vs, A.K Burman,[10] the Hon’ble Calcutta High Court held, “the discharge of an accused under Section 227 of CrPC, doesn’t amount to the acquittal of an accused. Under Section 227 of the code, the accused is released on the ground of non-availability of the materials collected by the office during the investigation, the Court does not exonerate the accused from all the charges at that stage. The discharge may be due to inept inquiry and investigation. The discharged person can again be charged subsequently after proper investigation and collection of relevant materials.”

· In the case of Sanjay Gandhi vs Union of India [11] reported in AIR 1978 SC 514, it was held “there is no such provision that permits the Magistrate to discharge the accused. Discharge order can be given only by a trial court and in respect of the offences exclusively triable by a court of session, the court of the Judicial Magistrate is not the trial Court.”

· In the case of Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364,[12] the Hon’ble Supreme Court held “the learned Judge should go into the details of the accusations made against each of the accused persons while considering an application for discharge filed in terms of Section 239 of the Code, in order to determine to whether any case at all has been made out or not.”

· In the case of State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568[13], A Three-Judge Bench of Hon’ble Supreme Court held, “Section 227 was enacted in the Code with the purpose of saving the accused from unnecessary harassment. It is assessed to prohibit harassment of accused persons when the gathered evidential materials fall short of minimum legal requirements after investigation.”


“Let there be a hundred guilty acquitted but one innocent should not be convicted” is a motto followed by courts in deciding matter related to criminal offences. When deciding such matters, the scale of justice usually tips towards the accused and it is because of the fact that our judicial system runs on the cardinal principle of “Beyond reasonable doubt”. This means that any person is innocent until proven guilty and he is entitled to the benefit of every reasonable doubt.

The fundamental notion behind this is to ensure that no innocent person should be convicted on false allegations or the society would perhaps lose its faith in the institution of the judiciary and justice system as a whole.

[1] Section 436, 437, 438, 439, Cr. P.C, 1973 [2] State of Rajasthan, Jaipur vs Balchand @ Baliay, 1977 AIR 2447, 1978 SCR (1) 535 [3] Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 [4] Gurbaksh Singh Sibbia v. State of Punjab 1980 AIR 1632, 1980 SCR (3) 383 [5] Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 AIR 1042, 1996 SCC (1) 667 [6] Hussainara Khatoon and others v. Home Sec, State of Bihar 1979 AIR 1369, 1979 SCR (3) 532 [7] Moti Ram v. State of Madhya Pradesh, 1978 AIR 1594, 1979 SCR (1) 335 [8] Sushila Aggarwal & Ors. V. State (NCT of Delhi) & Ors. [SLP (Crl.) 7281-82/2017, decided on 29.01.2020] [9] Satish Mehra v. Delhi Administration and Another, (1996)9 scc 766 [10] P. Viswanathan Vs, A.K Burman, (2003) CriLJ 949 [11] Sanjay Gandhi vs Union of India AIR 1978 SC 514 [12] Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364, [13] State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568

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