The code of criminal procedure does not provide the definition of bail; but the courts gave their judicial interpretation that, it’s an amount of money paid by an accused to get out of legal custody, to appear in the Court when required, by undertaking a promise as a temporary measure until the trial is completed and compelling to remain within the jurisdiction of Court.

  • Bail not granted- against the Fundamental Right

In the constitution of India, a right to bail was not injected as a right; but it is quite implicit that it has been devolved as a right under Article 21 as a component of personal liberty. But, in India, the bail system is a property-oriented approach. It is wrong on the part of anyone to think that if one has money he can flee from the justice system. Thus, the focus of judicial discretion is on Articles 14, 19, and 21 of the Indian Constitution regarding personal liberty and equality of the individual.

Case Study

In the matter Ajay Kumar Petitioner v. State NCT of Delhi the court said that Article 21 of the Indian constitution bail is the fundamental right of the petitioner and jail should be an exception.

Article 21 of the Indian Constitution spotlight the journey of anticipatory bail to becoming a fundamental right. And, also played an essential role in the various cases and made some judicial interpretations.

Also highlights the importance of the grant of anticipatory bail as it protects the right to life and liberty; and also marks the essence of another kind of bail and their legality on an accused mentioned under CrPC. To improve the conditions of the accused and to protect the interest of liberty and freedom, some amendments that need to be enacted.

This right guarantees everyone in the territory of India, life with all the freedom to enjoy one’s life and liberty. But, the refusal of this right or demanding the amount that a person is unable to pay is an infringement of article 21 of the Constitution.

In Balchand (1977) the court held that “The basic rule may perhaps tersely put as bail, not jail”. In this matter, J. Iyer said that the time has come to rethink the traditional system of pecuniary bail. It may well be that in most cases an undertaking would serve the purpose.

From this, three things are clear:

  • Bail is a fundamental right
  • The norm is bail, not jail
  • Full explanation in written with Good reasons for denying bail.

By following these norms; if a person is denied the right to bail due to any reason, it is an infringement of his right to life and liberty.


After the above discussion; we can conclude that bail is a fundamental right as per Article 21 of the Constitution of India. The focus of judicial discretion on bail should always be upon the aspects of personal liberty and equality of the individual. If a person is denied his right to bail due to any reason; it is an infringement of his right to life and liberty. It depends upon the court to entertain.

“Though bail is a rule and jail is an exception”.

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