Thursday 3 November 2011

Law on bail and the 2G case

With the Delhi court rejecting the bail applications of accused in 2G scam, there is growing resentment in the judicial circles, on the way things are going on in 2G trial. But for a layman I am writing what is the law on bail and why everyone in the judicial circles is feeling agitated.

Law on bail

Before we get to know what is law on bail we must also know what are bailable offence and what are non bailable offences.
Bailable offence : A bailable offence is one in which an accused is entitled to bail as a matter of right. Generally offence which have a punishment of less than three years are said to be bailable offences.

Non-bailable offence 
A non bailable offence is one in which a person can not ask for bail as a matter of right. In fact, in such cases, it is the discretion of the court whether to release an accused on bail or not. Generally offences in which the punishment is more than three years are termed as non bailable offences.

Why bail?
Indian law is based on the principle that a person is presumed innocent till he is proved guilty. This principle governs the entire legal system of the country with few exceptions. Our entire legal history tought us ''Bail and NOT Jail'' shall be governing principle when it come to adjudication of the criminal cases in the country.

Factors which are considered by the courts which granting or denying bail to an accused

Whether there is a likelihood that if the accused is released on bail, he will abuse the process of law?

This simply means the court would see that if a person is released on bail, is there a possibility that he may try to tamper with the evidence or try to influence the witnesses. And if there is a likely possibility that a person can do this, the accused may be denied bail. In such cases, the courts may also look into the economic status of the accused.

The court will also consider, if a person is released on bail, whether there is an apprehension that he might flee the country? Generally the court considers this factor while granting bail to NRIs, foreign national etc. And in such cases an accused might be denied bail.

Nature of the offence
While in bailable offences, a person can ask for a bail as a matter of right, in non bailable offences, generally the courts refuse bail in heinous offences, or offences in which which are generally punishable with death or life imprisonment. For example in cases of attacks the sovereignty of India, terror attacks, henious murders bail will not be granted to an accused.

Whether prosecution has any objection to the grant of bail to an accused?
If the prosecution in the case is satisfied that the investigation in the case is over and the evidence of the case is documentary which can not be tampered with the prosecution may not object to the grant of bail to an accused.

Past Record
If the accused is a first time offender, this is a factor which goes in favour of the accused, The idea is to give him a chance to stay away from the company of criminals which might influence his mind and he may also turn into a hardcore criminal in future.

Health of the accused 
In many a cases, where health of an accused might be so bad that keeping him in jail might be detrimental to his life. In such cases, the courts generally seek opinion of the doctors and grant bail to an accused.

Concerns of lawyers

Coming back to the 2G scam, the lawyers are expressing their concerns on the way the established principles of law on bail are being flouted. Most of the accused are first time offenders with no criminal history. Lawyers also argue that when the investigating agency has no objection to their release on bail, under which law, the court is keeping the accused in custody. Lawyers are also concerned that because of the ongoing 2G case, in other matters too, the prosecution is taking benefit and citing the example of 2G case.

As a student of law and a legal correspondent, I have heard the arguments in many cases. And the present case raises questions in my mind too! Either we should change the jurisprudence or the Supreme Court must clear the air on this issue of bail so that we must know with which point of view are we supposed to look at law on bail.


  1. Read the judgement carefully dude.
    Its all written in there.

    And stop watching news channels :)

  2. The court has made it clear in the order that the accused can apply for bail after the statements of witnesses were recorded.

    And the chief reason of denying bail is given as

    “This is a case of unprecedented nature. The facts and circumstances of the case itself suggest that the witnesses would be under a lot of pressure, given the serious consequences of the case for the parties. This is further compounded by the fact that the witnesses are employees, relatives, family members, colleagues, and subordinates of the accused.”

  3. Sir,
    Dmk was planning a 5 lac rally for welcoming her and positiong Kani as a women wronged because of backward caste etc. Also the witnesses are under pressure to withhold their deposition or turn hostile.Making them come out will show that law is not serious about convicting them.
    Justice Saini has sent right signals for witnesses to depose fearlessly

  4. Even Ramlingam Raju is being denied bail. On the grounds that he will influence the witnesses

  5. Someone wrote that being a Jethmalani fan, I want bail for the accused.. But read my blog clearly folks! My concern is the jurisprudence on Law on Bail.. I have no objection if 2G accused are denied bail.. But in such a case, the legal bigwigs must declare that there is a change in law on bail so that we know what are the established principles!


    Sumit Nagpal
    Writer of this blog

  6. I think there is a typo - "Why bail?
    Indian law is based on the principle that a person is presumed innocent till he presumed guilty." should be "till he is proven guilty" or so i assume

  7. Earlier comment was before i saw you note : on this being keyed in from your mobile..anyways, hopefully serves as an head's up when you proof it....