top of page

Bail & Power

Author: Ishani Chakrabarty Symbiosis Law School, Pune


The Code of Criminal Procedure, as the name itself suggests, enlists the procedure that must be followed before, during and after a criminal trial. These guidelines must be followed strictly and failure to adhere to the same will result in some form of punishment. In reality, these regulations are not followed as stringently. Furthermore, the punishment for the same is usually either not granted or not of the same nature as the disobedience. What is the reason behind the same? Why is it that some people are punished more heavily than necessary, while others are left to go scot-free? This article aims to shed light on these questions concerning two important concepts- Bail and Police power.


Bail exists to blend the freedom of the accused with the interests of justice i.e. if a person will appear in court without having to be forced into detention, why not allow him or her to do the same? Moreover, subjugation to detention can cause psychological deprivation to a person who is supposed to be presumed to be innocent until proven guilty. When a person is granted bail, they are deemed to be under the jurisdiction of the court. Bail is the rule and jail is the exception[1].

Bail itself is not defined under the Code of Criminal Procedure (hereafter referred to as “the Code”). However, Section 2(a) of the Code defines bailable offences as the offence(s) that have been shown in the First Schedule as bailable or which is made bailable by any other law for the time being in force.

Under Section 437(3) of the Code, the Court has got the discretion to impose certain conditions on the person who has been accused or suspected of the commission of an offence punishable with imprisonment, such as –

  1. that such person shall attend in accordance with the conditions of the bond executed,

  2. that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected,

  3. that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.

The Court can impose any other conditions as it considers necessary in the interests of justice. To make the provision stringent and to see that the person on bail does not interfere with the investigations or intimidate witnesses, sub-section (3) has been amended to specify certain conditions, which carry mandatory effect.

Circumstances surrounding bail

Any individual who has been frivolously charged with the allegations of a non-bailable offence is not only entitled to a good defence but also to be released on bail, by the Court upon taking into various factors such as the gravity of the offence, the type of evidence gathered, circumstances which are unique to the accused, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the state and similar other factors.

The Supreme Court has laid down[2] various factors to be taken into consideration before granting bail, which includes-

  1. the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence,

  2. reasonable apprehension of tampering of the witness or apprehension of threat to the complainant,

  3. prima facie satisfaction of the Court in support of the charge.

The problem with bail

The Supreme Court has held[3] that bail is a right in the matter of a bailable offence. At the time of analysing an application seeking bail, the Court is supposed to look at the prima facie material available and should not go into the merits of the case by the appreciation of evidence. However, bail is available only to those who are capable of furnishing surety and security. Moreover, bail is a right only when charges are not sent to the accused.

The primary objective of the provisions providing for the bail should not be to detain and arrest an accused person but to ensure the accused’s appearance at the time of trial and to make sure if the accused is held guilty, he or she is available to suffer the consequence of the offence as such committed, in terms of punishment as per the law. Bail is granted when the Court is convinced that the accused party will appear in front of it when they are summoned.

The grant of bail in a non-bailable offence is up to the discretion of a court but this discretionary jurisdiction is to be exercised in a judicious manner by applying sound judicial principles[4]. Unfortunately, in many instances, the same is not applied.

The most striking issue of bail is that many influential persons use the concentration of influence in their hands to ensure that they can escape detention as well as ensure that they do not have to be present for any judicial proceedings against them. Very often, bail is granted to those who have committed non-bailable offences because of their social status or the connections that they hold. Hence, the practice of bail is often misused and exploited by those who have the power to do so.

The concept of bail is established upon the fact that it would be unjust and unfair to deprive the alleged of their liberty during the pendency of the criminal proceeding against them. But, in reality, there exist thousands of people who have been put behind bars for 3 to 10 years for petty crimes for which the punishment does not even exceed 6 months. This was due to their inability to pay the bond money for bail and the courts were much too overburdened to deal with their cases. As the Honourable Justice P.N. Bhagwati had once stated[5], Courts must get rid of the antiquated concept of under which pretrial release is ordered only against bail with sureties. To implement the same, however, would be a tedious task for the already overburdened judiciary.

Duty of the Court

Since the release on bail upon appropriate considerations and the imposition of reasonable conditions are is significant not only to the accused but to the family members dependent upon him as well, the Court is duty-bound to contemplate the facts and circumstances prevailing in the matter. It must do its best to strike a balance between considerations and imposition of the reasonable conditions a priority, and then pass the appropriate order.


The judiciary, as well as the police, tend to blatantly defy the provisions of the Code of Criminal Procedure, grant bail to those who do not deserve it and refuse bail to those who deserve freedom, thus making the various aspects of bail-law a meagre provision on paper. Even though coercion of police to grant bail is severely prohibited, it is still practised. Despite the guidelines laid down by the Court, there has been no organic change in the internal structure, thereby allowing the police and the judges to in turn allow the commission of such atrocities.

It is necessary for people to know exactly what bail means, considering the depictions of bail in entertainment media are not reliable or accurate for the most part. Most people, law students included, are not aware of the various degrees of bail or who is capable of granting bail under what circumstances. It is thus of extreme importance to raise awareness and spread knowledge concerning the same, amongst both the legal and non-legal community.


Section 160 of the Code of Criminal Procedure, 1973

As per Section 160 of the Code, police officers investigating a case have the power to require the attendance of its witnesses. In order to conduct a successful investigation, the police must be able to acquire as much information as possible from the people who are familiar with the facts and circumstances pertinent to the commission of the offence being investigated. It thus becomes necessary to empower the Investigating Officer to call for and secure the attendance of the people who are likely to have relevant information. Non-compliance of summons under Section 160 is a punishable offence under the Indian Penal Code[6].

The general misconception is that the powers and authority of the police department are unrestricted and unencumbered. The added stigma is mostly because most people are not aware of the legalities that surround such situations.

Section 160 of the Code is found in Chapter XII, titled ‘Information to the Police and their powers to investigate’. The first section in this Chapter is Section 154 of the Code which deals with the information given to the police about the commission of cognizable offences, which is the concept of the FIR. Section 155 of the Code under the same chapter which deals with the information given to the police concerning the commission of non-cognizable offences. Section 160 of the Code deals with notices issued by an investigating police officer requiring the attendance of any person who, from the information given or even otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required.

The implementation of section 160

The Delhi High Court[7] has taken strict measures towards ensuring that all notices issued under Section 160 of the Code and the other relevant sections categorically mention the details of the FIR. The Court directed strict and mandatory compliance of the directions passed therein so that the Delhi Police, as well as the public, are made well aware of this minute yet seminally important detail amongst others. It is unfortunate that in most cases police authorities are unaware of this directive and nonchalantly proceed to issue notices under Section 160 of the Code to persons in cases where the crime has not been registered yet. The said misfortune has plagued even the major metropolitan cities wherein even the general public and legal community is unaware of the legal semantics surrounding Section 160 of the Code.

Section 160(1) provides special protection to children and women against that the probable inconveniences that might be caused to them by abuse of police power. For example, two women had been taken into custody for interrogation in Assam[8]. A writ petition was filed in the High Court[9] of Assam where the question of constitutional protection of women from interrogation at police station houses was raised. It was held that whenever array officials have to deal with women before an arrest, they cannot be taken to the Army Camp for interrogation. Moreover, once a person is handed over to the police by the Army, they cannot be taken again into the custody of army officials. This statement was recorded for guidance and compliance by army officials and police establishments.

The reality of police power

In reality, police authorities casually issue notices mechanically without the application of mind. It is perhaps now, more than ever, necessary for this issue to be addressed by the Supreme Court. Directions concerning strict and mandatory adherence to the legal procedure to be followed while issuing of such notices under the Code are laid down to ensure that the people at large are well aware of their rights and remedies and are not subject to the arbitrary and harassing ways adopted by certain police officers by borrowing fictional strength from the provisions of the Code, in the same breath, it is equally imperative that police departments internally educate their officers to ameliorate any illegal and mechanical action on the part of the police.

Under the Code, a police officer making an investigation has the power to summon only a person who is within the limits of their own police station or within the limits of any adjoining police station. It is quite clear from the language used in section 160 that a police officer has no power to summon a witness who is not within the aforesaid limits of the same police station or even an adjoining police station. Despite this lack of ambiguity, there have been cases in which police have demanded that a person not within the territorial limits of the station be present there.  For instance[10], two people were asked to present themselves at the Police Station in Chhota Simla, District Simla in connection with the investigation of a case. An order was issued under Section 160 but was served on them in New Delhi. The petitioners were unable to go to the police station in compliance with the order. Subsequently, a charge sheet was submitted against the petitioners for an offence under Section 174 of the Indian Penal Code, even though there was no evidence to show that they were in Simla at all. Thus, it is rather common for police to issue summons beyond the confined territory, perhaps due to the urgency of certain matters and thus the urgency for the parties at hand to appear in the police station.


Many-a-times, police tend to blatantly defy the provisions of the Code of Criminal Procedure when their actions are not checked, thus making the protection given to the witnesses a meagre provision on paper. The police abuse the powers vested in them and participate in unconstitutional, unlawful ways of ensuring attendance or getting any statement out of them. Even though the coercion of parties to ensure their attendance severely prohibited, it is still practised. Despite the guidelines laid down by the Court[11], there has been no organic change in the internal structure, thereby permitting the continuance of atrocities committed by the police.

It is important for people to know what a cop can and cannot make them do, along with being aware of how widespread police misconduct exactly is. If somebody happens to be in a vulnerable situation because of or in the presence of a cop, they will most likely listen to anything her or she says without double-checking any of their claims. As the world recently witnessed the death of George Floyd in Minneapolis, USA, absolute power corrupts absolutely[12]. It is thus of extreme importance to raise awareness and spread knowledge concerning the same, amongst both the legal and non-legal community.


Bail can be said to be a subset of the general misuse of police power. The latter is the cause while the former is an effect. It is as much the duty of the government to render prompt justice against itself in favour of its citizens as it is to administer the same between private individuals. It is also pertinent to highlight the importance of implementation of the guidelines aforementioned, as well as a more concretized set of guidelines effected through the legislature. Mere guidelines on the working of sections of the Code of Criminal Procedure without ensuring strict disciplinary actions and mere circulation of such notice is not sufficient to restrain the malpractices prevalent in the system regularly.

A harsher legal provision, preferably given by the Centre attached with a sanction to form the grounds of dissuasion (no comma) is highly recommended to ensure that the rights of the witnesses or the rights of those in custody are not condensed, for the sake of justice, equity, good faith, and good conscience.

[1] Gurcharan Singh v. State of Delhi, AIR 1978 SC 179

[2] State of Maharashtra v. Sitaram Popat Vital, AIR 2004 SC 4258

[3] Guru Charan Singh v. State of Delhi Administration, AIR 1978 SCC 118

[4] Bhushan Kumar & Anr. v. State & Ors., AIR 2012 SC 1747

[5] Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81

[6] Section 174, Indian Penal Code, 1860

[7] Amardeep Singh Johar v.  State of NCT of Delhi, W.P.(C) 7608/2017

[8] Niloy Dutta v. District Magistrate Sivasagar District, 1991 Cri LJ 2933

[9] Article 226, The Constitution of India, 1950

[10] Krishan Bans Bhadur v. State of Himachal Pradesh, 1975 Cri LJ 620 (H.P.)

[11] Amardeep Singh Johar v. State of NCT of Delhi (supra)

[12] Lord Acton, Historical Essays and Studies

bottom of page