Legal Mechanism of Bail: A Critical Analysis

Legal Mechanism of Bail

Bail is defined as security like a personal bond or surety, required by the courts for the discharge of an individual accused of committing a criminal offense from custody. The accused, however, must appear before the court for future hearings. Bail is provided as a matter of right and is just rejected under exceptional circumstances.

Unlike foreign jurisdictions, India lacks homogenous legislation on bail, and therefore the provisions of bail are spread across various special laws. Sec 43D(5) of the Unlawful Activities (Prevention) Act, 1967, (‘the Act’) is concentrated on the procedure for granting bail to an individual who is accused of terrorism activities under Chapters IV and VI of the Act. Sec 43D(5) of the Act has been a topic matter of scrutiny for infringing upon the constitutional rights of the citizens and making it exceedingly difficult to secure bail. The arbitrariness of the courts in interpreting the availability is exemplified by the actual fact that over sixty-seven percent of the accused charged under this provision, many of whom are detainees, are later acquitted. This adds to the menace of pre-trial detention where the accused is detained for several years only to be found clean-handed in the end.


As per Sec 43D(5), bail can’t be granted to an individual accused of being involved in terrorist activities if the general public Prosecutor has not been given an inexpensive opportunity of being heard. The proviso to the supply provides for a condition when the accused wouldn’t be released on bail. It mandates that if the court is convinced, after receiving evidence from the case diary or report, that the accusations against the person are clearly true, bail wouldn’t be granted to the accused. Since the latter provision has been frequently misused by the State and misinterpreted and misapplied by the courts, the scope of the paper is restricted to the identical.


Academic literature on fundamental criticism of this provision is majorly focused on its denial of presumption of innocence to the accused and also the inclination of the courts to heavily rely on the version presented by the prosecution while deciding bail. the stress of the author is on the redundancy of this provision. While adjudicating a bail application, the courts are required to balance the interests of the accused against the interests of the State and society at large. the first interest of the accused is his right to liberty and freedom. Conversely, the interest of the State can include prohibiting the individual from absconding, committing offenses during bail, tampering with evidence or threatening witnesses.


It is recommended that Sec 43D(5) should be amended. Currently, the part that reads “the accusation against such person is clear true” should be removed. Instead, a customary almost like the Kenyan model should be adopted because it is premised upon the prosecution proving its interests mentioned partially III instead of merely determining the probability of guilt at the stage of a bail application.

Under Kenyan law, the prosecution must prove compelling reasons to deny bail to an accused including those charged with heinous crimes like terrorism. The reasons are deemed compelling if there are reasonable grounds for believing that the accused will flee, interfere with witnesses, evidence, or the investigation, or commit an offense while being on bail. Bail may additionally be rejected if it’s necessary to stay the accused in custody for his own security, where the accused could be a minor for his own welfare, or where an individual who was granted conditional bail has breached such condition. Kenyan law doesn’t provide detention based only on the probability of the accused having committed the crime.

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