Authored By: Palak Verma
Apex University
Abstract
The principle that “bail is the rule and jail is the exception” forms the cornerstone of Indian criminal jurisprudence, reflecting the constitutional commitment to personal liberty under Article 21 of the Constitution of India. Bail serves as a mechanism to balance the fundamental right to liberty with the interests of justice and societal protection. This article examines the meaning, purpose, and statutory framework of bail under the Bharatiya Nagarik Suraksha Sanhita, 2023, while tracing its constitutional evolution through landmark judicial decisions such as State of Rajasthan v. Balchand, Dataram Singh v. State of Uttar Pradesh, and Gudikanti Narasimhulu v. Public Prosecutor. It analyses the various types of bail, including anticipatory, regular, interim, and default bail, and discusses the principles governing their grant, such as presumption of innocence, judicial discretion, and protection against arbitrary arrest. The article further explores the exceptions to the rule of bail, particularly in cases involving heinous offences, economic crimes, and risks of tampering with evidence. Finally, it highlights systemic challenges within the bail framework, including judicial delays, financial inequalities, and overcrowding of prisons, thereby critically evaluating the practical implementation of the doctrine. Through constitutional analysis and judicial interpretation, the article underscores that bail jurisprudence in India is not merely procedural but a reflection of the nation’s commitment to human dignity and rule of law.
Introduction
Bail is a statutory remedy given to an individual under the CRPC, who is accused of a crime and release him from the custody of law. Law Lexicon gives the definition of bail as “security for the appearance of the accused person on giving which he is released pending trial and investigation”.[1] Article 21 of the Constitution guarantees ‘right to life and personal Liberty’ this can only be infringed through the legal procedures, when we talk about the provision of bail, it is backed by our constitution as it protects our right as an individual and ensures no person gets deprived of them in the name of law. It acts as the bridge between the provision of bail, and shows personal liberty is very important in criminal matters. The word “Bail” came from French word ‘Baillier’ which means ‘to give or to deliver’.[2] India uses the principle ‘Bail is the rule, Jail is the exception’ so that no individual until proven guilty should be deprived of his personal rights and kept in jail, which gives him time to prepare for his defense to prove himself innocent.[3] This article analyses the constitutional foundation, statutory framework, judicial interpretation, and practical challenges of bail jurisprudence in India.
Meaning and purpose of Bail
Though CRPC did not define the term “bail”, Bharatiya Nagarik Suraksha Sanhita (BNSS),2023, in its section 2(1)(b) gives the formal definition of the term. Bail means “release of a person accused of or suspected of an offence from the custody of law upon certain condition imposed by an officer or court on execution by such person of a bond or bail bond”.
Section 2(1)(d) defines “bail bond” which means “an undertaking for release with surety” and sec 2(1)(e) defines “bond” which means a personal bond or undertaking for release without surety.[4] There are 4 type of offences from which two of them are “Bailable Offence” and “Non-Bailable Offence” and is defined under the section 2(1)(c), earlier in CRPC it was defined under the section 2(a). In simple terms Bailable offence means where court can grant bail to an accused person as matter of right, when the offence is not very serious either the court or a police officer can grant bail when the person provides required “securities” and “bonds”, section 478 of BNSS governs with bailable offence.
Non-Bailable Offence means bail is given to an accused based on the discretion of the court and not on the matter of rights, giving bail in non-bailable offence is not mandatory but discretionary.[5] Section 480 and 483 of BNSS governs non-bailable offence.
The main object behind the provision of bail is Indian Judicial System runs on the principle of “Presumption of innocence” also means “innocent until proven guilty”, which saves them from being in jail for a long period of time, the concept of bail falls within the scope ‘Human Rights’ because it safeguards the personal liberty of an accused.
Constitutional foundation of Bail
The principle “Bail is the Rule, Jail is the Exception” was established in State of Rajasthan vs Balchand by Justice V.R. Krishna Iyer while delivering the judgment. In this case the accused was convicted by the trial court under Section 452 and 323 of Indian penal Code (IPC), upon which he appealed in High Court and was granted Bail, State of Rajasthan challenged the judgment in Supreme Court, where Justice V.R. Krishna Iyer upheld that the mere conviction by the trial court cannot justify rejecting the appeal for bail until the crime is very heinous. This principle is milestone in the criminal matters focusing on the principle of presumption of innocence and linking it with Article 21 of the constitution ‘right to personal liberty’.[6]
In Dataram Singh vs State of Uttar Pradesh, the court reinstated stating that the bail is the general rule and the jail is the exception.[7]
In Gudikanti Narasimhulu vs Public Prosecutor, Krishna Iyer stated that the judicial discretion in Bail matter must ensure ‘Liberty’, ‘Justice’, ‘public safety’ and burden of public treasury, under Article 21.[8]
In Bikramjit Singh vs State of Punjab, the court granted the ‘Default Bail’ to the accused as a matter of right under the Article 21, safeguarding his right against illegal detention.[9]
Collectively these decisions upheld the principle of ‘bail is the rule, jail is the exception’ relating it with Article 21of the Constitution as a matter of right to personal liberty.
Types of bail in India
There are four types of Bail in India:
Anticipatory Bail: Anticipatory Bail under Section 482 of Bharatiya Nagarik Suraksha Sanhita(BNSS), 2023 means, “when a person believes that he may be arrested on the accusation of having committed a non-bailable offence” he can apply for bail in High Court or Court of Session, on conditions which courts may apply as directed under section 482, considering the facts of the case.
Regular Bail: Regular Bail is a release granted by the police officer or court for ordinary offences that are not very grave.
Interim Bail: Interim Bail means temporary release granted by the court in case of an emergency keeping the humanitarian concern as foremost priority like health issue, family emergency, but the court can grant bail only for short period.
Default Bail: The Default Bail is statutory right under the section 187 (3) of BNSS, that means Magistrate can grant bail to an accused when the investigation for offences punishable for death penalty, life imprisonment, imprisonment for more than 10 years is not completed within the period of 90 days or 60 days for other offences.[10]
Principle governing grant of bail
One of the most foremost principles of bail is ‘presumption of innocence’, a person is assumed innocent until the guilt is proven, not to deprive them of their personal liberty unless the offence is grave. The burden of proof lies with prosecution. Universal Declaration of Human Right (UDHR) has declared this principle to which India is a signatory.
Right to liberty, in India Article 21 protects the right to personal liberty of an accused person before the trial to grant bail. The court must consider the right of the accused too.
The court has discretionary power whether to grant bail or not, but especially in non-bailable offence. It is based on the seriousness of crime e.g. murder rape, serious economic offence.
Overcrowding of the jail is also one of them reason why court grants bail, sometimes the crimes are not that serious and to keep the jails from being overcrowded the court grants bail to the accused on the condition they will come to the court on time whenever it is necessary.
Bail may be denied if the accused tampers with the evidence either onsite or with any of the document, or when the court believes that the accused may flee and not follow the conditions imposed upon him by the court.
If the investigation is not completed within the reasonable timeframe the court may grant bail to the accused which is also called Default Bail.
These principles have a great impact on society, when the court grants bail based on the principle of ‘innocent until proven guilty’ the society gains faith in the system, but when the bail is granted to the accused in a serious crime then the society loses hope and it weakens the confidence of public on judiciary. But the provisions like monetary bond helps the rich only, the poor and marginalized have to suffer underneath the law because they don’t have enough money to get adequate legal representation or pay for the bond. The provision of bail protects the personal liberty of accused and they can support their family while not being in jail the whole time but has to follow certain conditions.
In case Arnesh Kumar vs State of Bihar, the court emphasized that the police cannot automatically arrest an accused they must justify the reason of arrest. This shows the law protects the individual’s personal rights and respects their freedom.[11]
Exceptions- when jail becomes necessary
The principle ‘Bail is the Rule, Jail is the Exception’ is a cornerstone, but bail is denied in certain cases involving:
Tampering with evidence, when there is an apprehension that the accused might intimidate the witness and destroy the documents related to the evidence the court may deny the bail.
Courts deny bail in non-bailable offence when the crime is very heinous and can’t let the accused free without any reasonable justification, it is based on the discretion of the court.
Bail is denied in the serious economic crime affecting public economy, big economic frauds like Vijay Maliya case, or when the offender is convicted for the same offence or another repeatedly.
Bail is not absolute because of the certain reason which is necessary to safeguard public safety and for the reputation of law so that it is very clear that court don’t blindly grant bail to an accused and this restores the faith of public and it sets an example that criminals can’t do crimes freely knowing that they will be bailed out by their legal representative, that creates a fear among them.
Challenges In Bail System
In India, bail has many challenges like following:
Courts often take prolonged time to grant bail to the accused.
Decision of bail is based on discretion of judge often leads to allegations of biasness.[12]
Lack of financial resources to get bail, many poor people suffer because of that when they can’t pay for monetary bond to get bailed.[13]
The accused most of the time don’t have adequate sources, financial stability to hire a legal representative.
Conclusion
The ‘Bail is the rule, Jail is the exception’ principle was given in India in state of Rajasthan vs Balchand. Bail means a person is temporarily released from the jail on the condition to come back in court whenever the court may ask. There are four types of bail – 1.) Regular Bail 2.) Anticipatory Bail 3.) default bail 4.) Interim Bail. Article 21 safeguards the right to bail it was stated in case state of Rajasthan vs Balchand and it was reinstated in Dataram Singh vs State of Uttar Pradesh. Presumption of innocence governs the principle of ‘Bail is the rule, not Jail’ and most of the time in Non-Bailable offence it is based on the discretion of judge which sometimes leads to biasness, for bail the accused have to submit the bail bond or monetary bond, poor people find it challenging to apply for bail because they lack resources which creates challenges in bail system along with many reasons mentioned above. Bail is the rule because many poor people suffer from wrong accusation, but they are the one not getting much help from this principle, it was brought to safeguard peoples right and to give them a chance to improve their life.
Reference(S):
Mehta DS and others, Conditional Bail: Scope and Limits, National Judicial Academy, Definition of Bail
Diva Rai and Diva Rai, Bail Is Rule, Jail Is Exception, iPleaders, July 20, 2020, Bail is rule, jail is exception – iPleaders
Mansirat Kaur Snadhu, Bail before bars: A Constitutional perspective, International Journal for Legal Research and Analysis, volume II Issue 7, November 2024, INTERNATIONAL JOURNAL FOR LEGAL RESEARCH AND ANALYSIS
Bharatiya Nagarik Suraksha Sanhita, 2023, December 25, 2023 India Code: Bharatiya Nagarik Suraksha Sanhita, 2023
Mudgal A and Mudgal A, Bailable and Non-Bailable Offences, iPleaders, April 14, 2025, Bailable and non-bailable offences
State Of Rajasthan, Jaipur vs Balchand (1977), SCC 2447, State Of Rajasthan, Jaipur vs Balchand @ Baliay on 20 September, 1977
Dataram Singh vs The State Of Uttar Pradesh, SUPREME COURT 980, 2018 (3) SCC 22, Dataram Singh vs The State Of Uttar Pradesh on 6 February, 2018
Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra, SUPREME COURT 429, (1978) 1 SCC 240, Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra … on 6 December, 1977
Bikramjit Singh vs The State Of Punjab, Bikramjit Singh vs The State Of Punjab on 12 October, 2020
[1]Bharatiya Nagarik Suraksha Sanhita(BNSS),2023
Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014, AIR 2014 SUPREME COURT 2756, Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014
[1] Saslaw, Bail Laws in India: Key Considerations and Challenges, Sharma and Sharma Law Chambers, Sharma and Sharma Law Chambers, 18 November 2025, Bail Laws in India: Key Considerations and Challenges – Sharma and Sharma Law Chambers
Gupta S, Right to Bail in India, Challenges Associated and Suggestions,StudyIQ, September 6, 2025, Right to Bail in India, Challenges Associated and Suggestions
[1] Mehta DS and others, Conditional Bail: Scope and Limits, National Judicial Academy, Definition of Bail
[2] Diva Rai and Diva Rai, Bail Is Rule, Jail Is Exception, iPleaders, July 20, 2020, Bail is rule, jail is exception – iPleaders
[3] Mansirat Kaur Snadhu, Bail before bars: A Constitutional perspective, International Journal for Legal Research and Analysis, volume II Issue 7, November 2024, INTERNATIONAL JOURNAL FOR LEGAL RESEARCH AND ANALYSIS
[4] Bharatiya Nagarik Suraksha Sanhita, 2023, December 25, 2023 India Code: Bharatiya Nagarik Suraksha Sanhita, 2023
[5] Mudgal A and Mudgal A, Bailable and Non-Bailable Offences, iPleaders, April 14, 2025, Bailable and non-bailable offences
[6] State Of Rajasthan, Jaipur vs Balchand (1977), SCC 2447, State Of Rajasthan, Jaipur vs Balchand @ Baliay on 20 September, 1977
[7] Dataram Singh vs The State Of Uttar Pradesh, SUPREME COURT 980, 2018 (3) SCC 22, Dataram Singh vs The State Of Uttar Pradesh on 6 February, 2018
[8] Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra, SUPREME COURT 429, (1978) 1 SCC 240, Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra … on 6 December, 1977
[9] Bikramjit Singh vs The State Of Punjab, Bikramjit Singh vs The State Of Punjab on 12 October, 2020
[10] Bharatiya Nagarik Suraksha Sanhita(BNSS),2023
[11] Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014, AIR 2014 SUPREME COURT 2756, Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014
[12] Saslaw, Bail Laws in India: Key Considerations and Challenges, Sharma and Sharma Law Chambers, Sharma and Sharma Law Chambers, 18 November 2025, Bail Laws in India: Key Considerations and Challenges – Sharma and Sharma Law Chambers
[13] Gupta S, Right to Bail in India, Challenges Associated and Suggestions, StudyIQ, September 6, 2025, Right to Bail in India, Challenges Associated and Suggestions
