Presumption Of Innocence in the Light of Indian Legal System

“Innocent Till one is proved and held guilty”

Introduction to the Issue

Recently, in July 2021, Supreme court two-judge bench comprising Justice Hemant Gupta and Justice V. Ramasubrmaniyam heard a special leave petition against Punjab and Haryana High Court for not hearing bail applications over a year. This is an infringement of the right of an accused. Court said, Normally we don’t interfere with interim orders of High Court but we are bound to pass the present orders as we are shocked to see that the bail applied under Section 439 of CrPC is not been listed for hearing for more than one year. The Arrested Person has the right to hearing of his bail application.

“Right to Speedy trial is recognized as an important part of an accused  Fundamental right and courts are compulsory to implement in the Trial but still there is delay in disposal of bail application”.

The court stated, that even during the pandemic when all the courts are attempting to hear and decide matters, the non-listing of such an application for bail, defeats the administration of justice. Due to the pandemic conditions, at least half of the Judges should sit on alternative days, so that the hearing is in accordance with the person who is suffering the non-listing of application for regular bail. The irregular court should decide them in one month. Supreme Court observed the arrested person’s “Right to hearing of a bail application is, in fact, the denial of hearing” It is an infringement of right and liberty to an Individual.

What is Bail?

According to the Black law Dictionary, bail is “The discharge of an individual from legal custody, by undertaking that accused shall appear at the time and place following the jurisdiction and judgment of the court subjected to him”. Bail obtained by a person arrested in regards to the offence charged upon the accused could secure his presence during a trial. When a person applies to bail for the crime that he /she is accused of, a person who is accused of can approach session court or High court and it is not compulsory that an applicant approaches which court first and on the rejection of this plea he can move to the High court or Supreme court. A person who apprehends an arrest can move to high court directly by getting bail without approaching session court first. The high court does not take a direct application and asks the applicant to move to session court first and come to high court after getting rejected by Session court.

Types of Bail

In India, the Criminal Procedure code regulates the Bails, they are mainly classified into 4 main types :

  1. Regular Bail – A Bail granted to a person who has been arrested or is under police or judicial custody.
  2. Anticipatory Bail – Bail which is granted before the arrest is normally by Sessions court or High court. it is granted when someone has fear of arrest in any crime. “Anticipatory bail” is often applied at various stages. Any person who apprehends of getting arrested although if there’s isn’t any F.I.R lodged against him can approach  Anticipatory bail. When FIR is filed but the investigation has not yet started i.e. before investigation then the person can apply for Anticipatory bail. And, a person also can approach for anticipatory bail at the post-investigation stage. While granting anticipatory bail, Courts sees the seriousness of the offence, the Role of the accused, and evidence against the accused. It is expected that after exercising the discretion judiciously, the Session Court or the Supreme Court grants “Anticipatory Bail” and which too after hearing the general Public Prosecutor.
  3. Interim Bail – Bail granted before the hearing of grant of regular bail or anticipatory bail for a short period of time.
  4. Default Bail – This type of bail is granted as per section 436A of CrPC when the accused is under trial and in Judicial custody and has already gone through half of the maximum punishment awarded for that offence.

Provisions of Bail

  1. Under section 2(a), the term Bailable offence is defined  ( The type of offence punishable with less than 3 years of imprisonment where accused is granted bail). While Non-bailable offence means ( The type where the accused person is not entitled to get bail where punishment is 3 years or more ).
  2. Section 436 CrPC – A person who is not guilty of any non-bailable offence and gets arrested without any warrant, then the police must release him without any sureties.
  3. Section 439 – states that an order passed under section 436 of CrPC shall be appealable. an order made by the magistrate to the session judge is appealable.
  4. Section 167 – States  Incomplete investigation which implies that the order to extend the period of 24hrs. for the purpose of prior investigation is not completed the person detained shall be released and the period of detention shall not exceed 90 days in the case where the offence is punishable with the death penalty or life imprisonment and 60 days where the offence is punishable for a term less than 10years.
  5. Section 436 A –  states that the detention period for an undertrial prisoner other than the one who is accused of the criminal offences punishable with death or life imprisonment shall be released from detention if the person has been detained for one-half of the maximum sentences committed by him.
  6. Section 437 – states that to appear in the high court and when the high court issues the judgment of the court it becomes mandatory for the trial court or Appellate court which requires the accused to execute the bail bond with surety. it’s on the court or police officials that they may release the person arrested for non – bailable offences until and unless there exists any reasonable apprehension that the person arrested has committed any crime and is not guilty of any criminal punishment.
  7. Section 438 – states that when any person gets arrested he shall be released on bail after taking into consideration the conditions and then shall accept or reject the application filed for anticipatory bail. This bail is filed when any person has apprehension of getting arrested of non – bailable offence then he/she can apply in high court/session court for Anticipatory bail.

Rule is Bail or Jail?

Article 21 and Article 22 of the constitution is an exception and a very important principle that is Accused (Innocent until proven guilty). A person accused to have committed an offence, the state can’t take the right to life and liberty. As  Article 21 says, that no person should be deprived of the Right to life and personal liberty except in accordance with the procedure established by law, which must be just and reasonable. This enshrines accused is innocent that unless the guilt is established beyond a reasonable doubt.

Rule of law prevailed and liberty of a person was rightly protected. However, it is seen that there is a lot of alacrity in the regular course of working. Normally it takes days, weeks and sometimes even months to get bail. The Jails of our country are so overcrowded with undertrials and Courts are reluctant to grant bail. There is no speed in granting bail and in normal course Prosecution is given weeks after weeks only to file a reply. The Rule applied in the Criminal Procedure Code, 1973 (Cr. P.C.) regarding the arrest of an accused must be interpreted in a way that unless indispensable, detention of an individual must be avoided. Let’s not forget that guilt of a person can be established only after trial and we have seen various cases where the accused are acquitted of all charges after years languishing in jail and after years of trial. In these cases, the Right to Life and Liberty under Article 21 is the biggest casualty and every such case is not less than a crime by any state and judiciary upon an acquitted person who has Suffered in jail for denial of bail.

Case Laws: Supreme Court Observation

  • In Motiram v. State of Maharashtra [1]1978, Justice. Krishna Iyer said, the consequences of pre-trial detention are grave. Defendant’s innocence is subjected to psychological and physical deprivations of jail life. The Jailed defendant loses his job if he has been prevented from the preparation of his defense. The burden of his detention falls on the family members.
  • In State of Rajasthan v. Balchand baliay[2] the Supreme Court said that bail should be the rule for the accused and that they should be remanded in jail only in exceptional terms. This judgment was made by Justice V.R. Krishna Iyer and the Court held that the basic rule is Bail not Jail.
  • In State of Kerala v. Raneef [3], 2011, the supreme court observed that in deciding bail applications an important factor that should certainly be taken into consideration by the court is the delay in concluding the trial. often this takes several years and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is article 21 of the constitution which is the most basic of all the fundamental rights in our constitution not violated in such a case? of course this is certainly not the only factor but it is certainly one of the factors in deciding whether to grant bail or not.
  • In Dataram Singh v. State of U.P. [4]2018, the Apex court said, “ a humane attitude is required to be adopted by a judge while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody”. There are several reasons for this including maintaining the dignity of an accused person however where that person might be the requirements of article 21 of the constitution and the fact that there is enormous overcrowding in prisons leading to social and other problems as noticed in the court.
  • In 2017 Hussain v. Union of India case, the Supreme Court passed certain directions to make sure that timely disposal of bail applications by all courts need to decide bail applications within a week, while HIGH COURT should decide them within a month.
  • In Arnab Goswami case [5], Arnab was the Republic TV Editor in chief. In 2018 he was charged for abatement of suicide. Last year in 2020,  A two Judges Bench of justices D.Y. Chandrachud and Indira Banerjee gave the order on Goswami’s petition challenging the 9th November Bombay High Court order declining interim bail to Goswami in the Anvay Naik-Kumud Naik suicide. The Hon’ble Apex court intervened to guard the Rule of Law and also to guard the fundamental rights of Arnab Goswami. SUPREME COURT stated that it is the duty of courts – The district judiciary, High Court, Supreme Court to ensure that criminal law does not become a weapon for selective harassment of citizens .courts also observed that deprivation of liberty even for a single day –” Is one day too many” yet these directions have not been implemented and accused person languishes in for months and years.
  • Recently in Union of India v. K.A Najeeb [6], 2021, the supreme court reiterated its stand and observed that the Liberty guaranteed by part third of the Constitution would cover within its protective Ambit not only due process procedure and fairness but also access to justice and speedy trial in there is no logic and attaining undertrials indefinitely the state is duty-bound to conduct a speedy trial and if it fails to do so the under trial must be enlarged on bail by the courts of Justice.

International Stand on Presumption of Innocence

The presumption of innocence is a crucial part that ensures fair trial in cases, and protects the integrity of the justice system, and respects the human dignity of people who are accused of committing crimes. The presumption of innocence maintains the balance between the right to a fair trial and other human rights. Article 11(2) of the Constitution of India provides for Right to presumption of innocence. There were various declarations and legal conventions issued in the past fifty years, initiated by the Universal Declaration of Human Rights (1948) and perpetuated by, most importantly, the European Convention on Human Rights (1954) and the International Covenant of Civil and Political Rights (1966). Human rights mean rights relating to life, liberty, equality, and dignity of the individual granted by the constitution or embodied in international covenants as enforced by courts. The courts have thus given the widest possible ambit while interpreting the concept of human rights.

Under the universal declaration of human rights, which is more concerned for the accused in the present case. As rights that are fundamental to human life not just on a national level but in an international framework. Furthermore, Article 9 (Right against arbitrary trial and detention) and Article 14 (Presumption of innocence for the accused and right to a fair trial) are the concerned rights under the ICCPR. It has been established earlier that conventions which are in consonance with the constitution can be deemed to be incorporated by the state. Therefore the courts while adhering themselves to domestic law may look at the international framework, to minimize the violation of rights at its best.EU Directives concerning procedural rights recently proposed the case in which the Directives that have previously been enacted, are the harmonization of safeguards in criminal procedure in the Member States with a view to interstate cooperation. The proposal was certainly upon the presumption of innocence which was strongly viewed from the case-law of the European Court of Human Rights.


The concept of bail is to ensure the security of the accused will be available to meet the punishment when held guilty. As the definition of bail, is concerned it has not been statutorily defined. It is a conflict between the right for assurance of freedom and Restrains of security of the appearance of a person for his release. To grant bail offences has been classified as bailable and Non – Bailable under section (2) of Cr. P.C. Whether to grant bail or not to grant bail conflicts with the Right to Liberty of the accused under Article 21 of the constitution. Bail is considered as a fact from the initial point of accusation at police level to Supreme court, from the discretion of anticipatory bail to powers of High Court and Session court to grant bail and writ of Habeas corpus and Certiorari is to restore the liberty of accused. The provision of bail is an outline which is given by The Criminal procedure code. The consideration to granting Regular bail means bail after arrest explained under sections 437 and 439 of the code of criminal procedure of India so that the accused will not abscond or threaten the witness and will not commit the same crime on bail.

On the other hand, Anticipatory bail includes no Prima facie against the accused and will not be any threat to the investigation. With the change in circumstances, the Supreme court decisions have reflected the law but still, it has been ignorant. In my opinion, the right to bail is not a fundamental right, Provision for bail, either Anticipatory or regular but some laws deny bail and those laws are constitutionally valid. Many victims of crime see that judicial system as being slanted in favour of the accused person, rather than protecting their rights.  Despite all of the protection in the system, there are still miscarriages of justice where innocent people are convicted. No system of criminal justice is perfect, the best that they can do is try and strike the right balance between the rights of the individual and the rights of the community.  The presumption of innocence is one of the ways our system tries to strike this balance

This article is authored by Shubhangi Dengre, student at Symbiosis law school Nagpur.

[1]Motiram v. State of Maharashtra , (1978) 4 SUPREME COURTC 47.

[2]State of Rajasthan v. Balchand baliay, AIR (1977)SUPREME COURT 2447.

[3]State of Kerala v. Raneef , 35 (2011) 1 S.C.C. 784.

[4]Dataram singh v. State of U.P., (2018) 3 SUPREME COURTC 22.

[5]Arnab Manoranjan Goswami v. State of Maharashtra , 2020 SUPREME COURTC Online BOM 2165.

[6]K.A Najeeb v. Union of India, (2021) 3 SUPREME COURTC 713.


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