Published On: March 12th 2026
Authored By: Lavanya Naugai
Vivekanand Institute of Professional Studies, GGSIPU
Abstract
In light of the growing awareness surrounding the principle that bail is the rule and incarceration the exception, multiple perspectives from the legal fraternity and the judiciary have been articulated at repeated instances. Wide and expansive judicial formulations, ranging from “prima facie satisfaction of the court” to “application of mind,” have shaped this evolving discourse. The recent shift in perspective brought forth by the Supreme Court guarantees the right to a speedy trial and, most importantly, affirms that bail cannot be denied solely on the basis of the nature or gravity of the offence. From the observations in Javed Ghulam Nabi Shaikh, designating absolute protection against pre-trial detention being treated as punishment, to the markedly rigid interpretations reflected in Sagar v. State of U.P. regarding the role of the accused and the nature of the offence, judicial opinion has traversed significant ground.
This article aims to examine the relevance and growing impact of the grounds for granting or denying bail, with particular focus on whether the gravity of the offence for which a person stands accused should be determinative, without disregarding the presumption of innocence and the inconvenience of pre-trial custody. Pre-trial detention is not a covert form of punishment; it is, rather, a supplemental mechanism aiding the determination and protection of societal interests and, at times, the interests of the accused as well. The greater tendency toward rejection of bail in cases involving serious or heinous charges gives rise to twin concerns of pre-trial detention and release, which further deepens inequalities embedded within the criminal justice system.
Introduction
The psychological and physical deprivations to which an accused is subjected when pre-trial detention takes effect are difficult to quantify or repair. Every time an accused is afforded the opportunity to be released and to appear before a magistrate from a position of relative equality, it benefits not only the individual but also society and those who depend upon them. At repeated instances, the judiciary has affirmed that “bail is the rule, jail is the exception,” yet the nature and role of the accused in the alleged offence continues to function as a balancing scale in determining whether bail should be granted or rejected, even when the accused is presumed innocent until proven guilty.
The statistics published in the Prison Statistics India, 2020 reveal that over two-thirds of India’s prison population comprises undertrial prisoners.[1] It is sometimes assumed that a person released on bail enjoys greater opportunities to prepare their defence than one remanded in custody. However, this assumption is contingent upon the nature of the offence and the extent of legitimate apprehension that cannot be addressed other than through continued detention. Scholarly research has consistently documented the far-reaching implications of pre-trial detention, ranging from harsher outcomes at sentencing to increased likelihood of conviction, among other collateral consequences.[2]
I. Presumption of Innocence: A Delusion or a Bulwark Against the State Apparatus
In Arvind Dham v. Directorate of Enforcement,[3] the accused faced prosecution under the Prevention of Money Laundering Act, 2002 in connection with an alleged fraud scheme involving the wrongful siphoning of public funds. The significance of this case lies in the observations of the bench at Paragraph 15, which merit reproduction:
“It is well settled that if the State or any prosecuting agency, including the court concerned, has no wherewithal to provide or protect the fundamental right of an accused to a speedy trial as enshrined under Article 21 of the Constitution, then the State or any prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious in nature.”[3]
For decades, the gravity and nature of the offence had been among the principal grounds for determining bail applications. The above observations, along with the body of precedent accompanying them, seek to establish the pervasive reach of Article 21 even within the most stringent statutory frameworks. Bail is, in essence, the release of an accused from detention. The misuse of criminal process through false implication has also been recognised and addressed by the 41st Report of the Law Commission of India.[4]
These observations, however, stand in tension with the position taken in Amarmani Tripathi v. State of U.P.,[5] wherein the court considered factors such as the behaviour, character, means, position, and standing of the accused. Such an approach complicates the architecture of pre-trial detention and bail, as it risks running contrary to the presumption of innocence by effectively presuming guilt or dangerousness on the basis of personal characteristics.
II. The Tenacity of the Position and Role of the Accused
The court bears the responsibility of balancing the personal liberty of the accused against the broader public interest. The rationale for pre-trial detention is conventionally grounded in preventing the accused from absconding, committing further offences, tampering with evidence, or intimidating witnesses. What must equally be borne in mind is that extended incarceration degenerates the accused’s capacity to participate in their own defence and causes direct prejudice to the right to a free and fair trial.
Judicial interpretation of bail in this context may be understood through two broad perspectives:
A Narrower Perspective: This approach requires the State to demonstrate, beyond reasonable doubt, a compelling necessity for the continued pre-trial detention of the accused, placing the burden squarely on the prosecution.
A Broader Perspective: This approach treats personal liberty as a bulwark against wrongful pre-trial detention, placing it at par with, or above, the nature of the offence as a determinative factor.
Under Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), discretionary power is conferred upon courts other than the High Court or Sessions Court to grant bail in non-bailable cases. A non-exhaustive articulation of the relevant considerations was provided in Jagdish Kumar v. State (1989),[6] which identified the following factors:
1. The nature of the accusation against the accused;
2. The severity of the punishment that would follow upon conviction;
3. The nature and quality of evidence in support of the accusation;
4. The likelihood of the accused fleeing justice;
5. The protracted nature of the anticipated trial; and
6. The position and status of the accused in relation to the victim and witnesses.
Notwithstanding this framework, courts in India have exercised discretion in accordance with their own considerations, often lacking a firm constitutional routing that expressly and uniformly determines the rule of bail and the presumption of innocence.
III. Inherent Contradictions in the Granting of Bail
A series of judicial observations has revealed deep-seated contradictions in the approach to bail. In Sanjay Chandra v. CBI,[7] the Delhi High Court appeared to comment on the guilt of the accused prior to trial, and weighted public interest over individual liberty in a manner that effectively placed the burden on the accused to disprove guilt, rather than resting it upon the prosecution. This position was fortunately reversed by the Supreme Court, which granted bail to the accused as an affirmation of the most fundamental of rights guaranteed under Article 21.
In the case of Rajesh Ranjan v. State of Bihar,[8] the pre-trial detention of the accused extended to seven years. Despite this prolonged incarceration, the Supreme Court rejected the bail application on the ground that the allegations were serious and the investigation remained incomplete. This outcome reflects the enduring tension between individual liberty and the State’s interest in preserving the integrity of the investigative and trial process.
The significance of bail as a factor in broader administrative and judicial determinations has also been acknowledged in the following terms:
“Grant of bail is an important factor which goes into making up the requisite satisfaction of the Authority. When considered appropriately, the grounds of bail do impact the decision of the Authority, one way or the other. In a given case, a person may be granted bail on a ground, inter alia, that he is not likely to tamper with the prosecution’s evidence or witnesses. This would be a ground which may strengthen the case of that person, and it may restrain the Authority from passing any detention order.”[9]
Conclusion
The judgment in Arvind Dham v. Directorate of Enforcement (2025)[3] may be seen as a catalysing force, bringing clarity to the principle of presumption of innocence until proven guilty and unequivocally stating that rigid statutory restrictions cannot be employed as a mechanism to render pre-trial detention punitive in nature. The court’s observations effectively balance this principle against the constitutional right to a speedy trial enshrined under Article 21:
“The right to speedy trial, enshrined under Article 21 of the Constitution, is not eclipsed by the nature of the offence. Prolonged incarceration of an undertrial, without commencement or reasonable progress of trial, cannot be countenanced, as it has the effect of converting pre-trial detention into a form of punishment.”[10]
Such observations have gained increasing traction since 2024, with the Supreme Court playing an active role in the grant of bail in cases involving prolonged pre-trial detention. In V. Senthil Balaji v. State,[11] the Court clearly affirmed that prolonged incarceration during a pending trial constitutes a legitimate ground for bail, since the purpose of detention is not punitive but rather to secure the ends of justice and protect the public interest. This trend has been further reinforced by high-profile cases such as that of Manish Sisodia, where pre-trial detention exceeded seventeen months, and Padam Chand Jain,[12] where the court took cognisance of the mental and physical toll of pre-trial custody as a factor militating against its continuation, particularly in cases involving allegations of false implication.
Taken together, these developments reflect a meaningful and necessary recalibration of the judicial approach to bail, one that centres the dignity, liberty, and constitutional rights of the accused as the primary considerations, while remaining attentive to the legitimate interests of society and the administration of justice.
References
[1] National Crime Records Bureau, Prison Statistics India 2020 (Ministry of Home Affairs, Government of India, 2021).
[2] Arpit Gupta, Christopher Hansman and Ethan Frenchman, “The Heavy Costs of High Bail: Evidence from Judge Randomization,” Journal of Legal Studies, Vol. 45, No. 2 (2016); Katherine Hood and Daniel Schneider, “Bail and Pretrial Detention: Contours and Causes of Temporal and County Variation,” RSF: The Russell Sage Foundation Journal of the Social Sciences, Vol. 5, No. 1 (2019), pp. 126-149.
[3] Arvind Dham v. Directorate of Enforcement, [2025] (Supreme Court of India).
[4] Law Commission of India, Forty-First Report: The Code of Criminal Procedure, 1898 (Ministry of Law, New Delhi, 1969).
[5] Amarmani Tripathi v. State of U.P., (2005) 8 SCC 21 (Supreme Court of India).
[6] Jagdish Kumar v. State (1989).
[7] Sanjay Chandra v. CBI, (2012) 1 SCC 40 (Supreme Court of India).
[8] Rajesh Ranjan v. State of Bihar.
[9] Source of block quotation in Section III requires attribution.
[10] Arvind Dham v. Directorate of Enforcement, [2025], Para. 15 (Supreme Court of India); LiveLaw News Network, “Right to speedy trial not defeated by gravity of offence; prolonged pre-trial detention becomes punishment: Supreme Court,” LiveLaw (2026).
[11] V. Senthil Balaji v. State.
[12] Padam Chand Jain.
[13] Vrinda Bhandari, “Inconsistent and Unclear: The Supreme Court of India on Bail,” NUJS Law Review, Vol. 6 (2013), p. 549.
[14] Judge James G. Carr, “Why Pretrial Release Really Matters,” Federal Sentencing Reporter, Vol. 29, No. 4 (2017), pp. 217-220.
[15] John N. Mitchell, “Bail Reform and the Constitutionality of Pretrial Detention,” Virginia Law Review, Vol. 55, No. 7 (1969), pp. 1223-1242.
[16] Adv. Naveen Rao, Bail or Jail: A Balance of Absolute and Limited Judicial Discretion (Prowess Publishing, 2019).
[17] Aditya Mehrotra, “The Anomaly of Judicial Discretion in Grant of Bail,” Manupatra Articles (accessed 7 January 2026).
