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Author: C. Vaishnavi Sarma, IV year of B.A.,LL.B.(Hons.) from School of Law, Veltech University


Supreme court of India recently emphasized its concerns concerning the growing number of undertrial prisoners in our country, which directly somehow questions the liberty of Indian citizens, such growth rate reflects the sluggish procedure of judicial aspects in our country, which is highly a considerable drawback of Indian judiciary as a whole. Enactment of new laws concerning the bail act may stimulate efficiency. The arrest of a person is unethical and a violation of the person’s fundamental right, if the person accused is innocent or not guilty of the offense he/she is accused of, though such possibilities are there that such circumstances are not properly understood by the lower authority which charge people for offenses, this problem arises from inefficient and ruined work ethics of police administration in our country India.[1] The police administration and authority are considering working with lower standards and illogically interpreting the statutes, poor knowledge of laws concerning arrest and bail, and the negligence of these authorities that have the power to take away the freedom of citizens, misuse the powers is the root cause of all the disastrous status of prisons or jail system. According to the Supreme Court of India, bail is designed as a technique to interfere with the synthesis of fundamental concepts of human values, namely an accused person's right to enjoy their liberty, the public interest in the release depends on the guarantee that the accused will be brought before the court to appear at the hearing and habeas corpus which is the protection against illegal, unauthorized detention of any ordinary person.[2]

Every individual must have the right to prove himself innocent and get a fair chance to prove himself guilty of the offense, irrespective of the fact that such a person is a criminal. Though the need for anticipatory bail arises primarily because powerful people sometimes try to implicate their rivals in false cases in order to disgrace them or for other reasons by having them detained in jail for a few days. This tendency has been steadily increasing in recent years, with an emphasis on political rivalry. Aside from false cases, where there are reasonable grounds to believe that a person accused of an offense will not abscond or otherwise misuse his liberty while on bail, there appears to be no justification to require him to first submit to custody, remain in prison for a few days, and then apply for bail[3]."

Power of arrest

The incidents of personal liberty are guaranteed by the Indian Constitution. No arrest can be made because the police officer has the authority to do so. It is one thing to have the ability to arrest. The justification for doing so is quite different. Apart from his authority, the police officer must be able to justify the arrest. Arrest and detention in a police cell can cause irreparable harm to a person's reputation and self-esteem. No arrest may be made in a recurring way on a trifling allegation of fee of an offense made in opposition to a person. It might be prudent for a police officer withinside the hobby of the safety of the constitutional rights of a citizen and possibly in his very own hobby that no arrest has to be made without an inexpensive pride reached after a few research as to the genuineness and bona fides of a criticism and an inexpensive notion each as to the person's complicity or even if you want to the want to - effect arrest[4].

Sections 41, 41A, and 60A of the Code are concerned with the arrest of people. This section states the condition required to arrest people by a police officer the scope of section 41, provides that any police officer can arrest people without the permission of a magistrate if the if such a cognizable offense is done by the person in the presence of the police officer as witness. If a reasonable complaint has been made against him, credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offense punishable with imprisonment for fewer than seven years or up to seven years, with or without a fine. Under section 41A The police officer shall] issue a notice directing the person against whom a reasonable complaint has been made, credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offense, to appear before him or at such other place as may be specified in the notice in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41. Arrests must be made strictly in accordance with Section 60A of the Code.— No arrest shall be made unless in accordance with the provisions of this Code or any other applicable law at the time."[5]

Based on the scope and objectives of Sections 41 and 41A, it is clear that they are aspects of Article 21 of the Constitution. In light of this Court's decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273: It is clear from a plain reading of the aforementioned provision that a police officer cannot make an arrest of a suspect for an offense punishable by imprisonment for a term that may be less than seven years or that may extend to seven years with or without fine unless he is satisfied that the suspect had committed the offense punishable as stated[6].

While making such an arrest, the law requires the officer to state the facts and record the reasons in writing that led him to the conclusion covered by any of the aforementioned provisions. The law also requires police officers to document their reasons for not making an arrest in writing.

In short, before making an arrest, police officers must have reason to believe, based on information and material, that the accused committed the offense. Aside from that, the police officer must be convinced that the arrest is necessary for one or more of the purposes specified in subclauses (a) to (e) of clause (1) of Section 41 CrPC.

The law forbids a police officer from detaining an arrested person for more than 24 hours, excluding the time required to travel from the place of arrest to the magistrate court. Subsection (1) of Section 167 covers all of this and the requirement that the police officer, in addition to forwarding the accused to the nearest magistrate, sends a copy of the entries in the diary pertaining to the case. The entries in the diary are intended to provide the magistrate with the information he needs to decide whether or not the accused should be detained in custody further.[7]The person making the arrest must have the legal right to do so in order for it to be considered lawful. The person who is being arrested has the right to a private defence and may resist the arrest even with force, according to Section 99 of the I.P.C., in the event that his conduct is completely without authority.[8]


A suspect is subject to a set of pre-trial limitations known as bail, which allows for any interference with the legal system. Therefore, it is a conditional release based on the suspect's earnest promise to cooperate with the investigation and the court case. It is “A security such as cash or a bond; esp., security required by a court for the release of a prisoner who must appear in court at a future time."[9] to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have if they fear his escape, etc., the legal power to deliver him[10].

The principle that Bails is the rule and jail is the exception has been well acknowledged by this Court's repeated pronouncements. This is based on Article 21 of the Indian Constitution. While discussing Section 498, which corresponds to current Section 439 of the Code, it was stated that it gave the Sessions Judge or the High Court broad powers to grant bail that was not limited by the restrictions in the preceding Section 497, which corresponds to current Section 437. The Court observed that there was no hard and fast rule or inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle established was that discretion should be exercised judiciously.[11] Cash bail is not required for accused persons who have reasonably recoverable assets and can pledge those assets to the satisfaction of the court. Recognizance serves the same purpose as cash bail and has the same coercive effect. Cash bail should be used only in extreme cases where release on recognizance with sureties is unavailable. When cash bail is ordered, the amount must not be so high that it effectively amounts to a detention order, which means that it should be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the accused's means and the circumstances of the case. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified, and it is dangerous to attempt to classify the cases and say that bail may be granted in certain classes but not in others. The principle to be deduced from the various sections of the Criminal Procedure Code was that bail is granted as the rule and refusal is the exception.[12]

The law governing the grant or refusal of bail is well established. The court granting bail should use its discretion sparingly and not as a matter of course. Though a detailed examination of evidence and elaborate documentation of the merits of the case are not required at the stage of granting bail, there is a need to indicate in such orders reasons for prima facie concluding why bail was granted, particularly where the accused is charged with a serious offense[13].


It is important to overlook the fact that laws concerning arrest and bail have been properly governed under the legislation of India. A person cannot be detained by the police unless they have accused him of a specific crime and taken him into custody as a result. In legal terms, detention and incarceration are synonymous. Any kind of physical restraint is an arrest, and being imprisoned just prolongs an arrest. False imprisonment is what the law refers to as an unjustified arrest.[14]There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law.The Bail Act must strike a balance between the two competing demands of society as a whole. Protect society from the misadventures of those suspected of involvement in the crime and preserve the innocence of the accused pending sentencing. The principle should guide the lower courts. Article 21 is significant because it enshrines the fundamental right to individual liberty; however, a balance must be struck between the right to individual liberty and societal interests. No right is absolute, and reasonable limitations can be imposed on it. While it is true that whether an accused has been in jail for a long time is one factor in deciding whether or not to grant bail, the Court must also consider other facts and circumstances, such as the interests of society.

[1]"Ethical Issues in Police Administration - ResearchGate." 01 Jun. 2013, [2]Kamalapati Trivedi v. State of West Bengal,AIR 1979 SC 777. [3]SiddharamSatlingappaMhetre vs State Of Maharashtra [4]2007 CriLJ 170 [5]Satender Kumar Antil vs Central Bureau Of Investigation [6]Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273: [7]1992 AIR 1768 [8]Kajaji v. State, (1969 Cri LJ 331) [9]the Black’s Law Dictionary, 9th Edn., pg. 160 [10]Wharton’s Law Lexicon, 14th Edn., pg. 105 [11]K.N. Joglekar v. Emperor, 1931 [12]Emperor v. H.L. Hutchinson, 1931 [13]Rajesh Ranjan Yadav @ Pappu Yadav vs Cbi 2016 [14]The Criminal Prosecution in England" by Patrick Devlin, at page 68


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