The Jurisprudence of Bail: Reasoned Orders and Judicial Discretion

In India, the jurisprudence of bail is undergoing a significant transformation. From being an arbitrary exercise to a structured judicial process, the Supreme Court has consistently emphasized that bail decisions must reflect sound reasoning and judicial mindfulness. The shift is not just procedural but reflects a deeper concern for upholding personal liberty, constitutional values, and the integrity of the justice system.

Below is a synthesis of landmark rulings that have laid down the contours of how courts must approach bail—particularly in ensuring that orders are reasoned, not cryptic, and compliant with the principles of natural justice.

1. Y. v. State of Rajasthan, (2022) 9 SCC 269

The Supreme Court criticized the High Court’s cryptic bail order, observing that such judgments do not reflect judicial application of mind. The Court lamented the growing trend of vague bail orders merely stating that “facts and circumstances have been considered” without spelling out what those facts are.

Key Takeaway:

A judicial order bereft of reasons is not just inadequate—it is arbitrary. “Reasoning is the lifeblood of the judicial system,” and vague references like “having perused the record” do not suffice.

2. Deepak Yadav v. State of U.P., AIR 2022 SC 2514

Here, the apex court reiterated that sound reasoning is essential, especially when serious offences are involved. The decision-maker must reassure the parties that discretion has been exercised judicially, after examining relevant considerations and ignoring extraneous ones.

3. Manoj Kumar Khokhar v. State of Rajasthan, (2022) 3 SCC 501

In this case, the Court invoked the Latin maxim: “cessante ratione legis cessat ipsa lex” — meaning, when the reason for a law ceases, so does the law itself. It held that cryptic and casual bail orders without meaningful justification are liable to be set aside.

4. Jaibunisha v. Meharban, (2022) 5 SCC 465

The Court clarified that although elaborate reasoning may not be required at the bail stage, some reasoning is indispensable. An order that lacks even basic rationale cannot be sustained.

5. Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497

Reiterating the need for relevant reasoning, the bench held that granting cryptic bail amounts to violation of natural justice. A “non-speaking order” renders the prosecution or informant remediless, justifying a challenge before a higher forum.

6. Ishwarji Nagaji Mali v. State of Gujarat, (2022) 6 SCC 609

The judgment acknowledges that while a detailed examination of evidence may not be possible at the bail stage, prima facie reasons justifying the grant of bail must be indicated. Absence of such reasoning renders the order unsustainable.

7. Sonu v. Sonu Yadav and Ors., (2021) 15 SCC 228

The Court explained how judicially reasoned bail orders bring transparency and credibility to the criminal justice process. Reasoned orders act as a bridge between judicial discretion and public trust.

8. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

This judgment laid the foundation for limiting unnecessary arrests, especially in offences punishable with imprisonment up to 7 years. The Court directed police officers not to arrest automatically and required magistrates to apply judicial mind before authorizing detention.

Significance for Bail Jurisprudence:

It curbed mechanical arrests and called for recording reasons for both arrest and remand. Bail became the rule, not the exception.

9. Satender Kumar Antil v. CBI, (2022) 10 SCC 51

A pathbreaking judgment that introduced structured bail guidelines, the Court classified offences into categories and directed strict compliance with arrest and bail norms. It reinforced that:

For Category A offences (punishable up to 7 years), arrest should be avoided.
Default bail must be respected under Section 167(2) CrPC.
Courts must not delay bail on technicalities or minor lapses.

Conclusion

The Supreme Court’s consistent refrain is that bail is not to be denied merely as a punitive measure, nor granted casually without rational basis. Courts must strike a delicate balance between individual liberty and societal interest by:

Recording cogent reasons;
Avoiding non-speaking, vague, or template-like orders;
Exercising discretion free from arbitrariness.

The evolving jurisprudence makes it clear: bail orders must speak. And when they do, they echo the Constitution’s promise of fairness, liberty, and reason.

Adv. Jayendra Dubey
advdubeyjayendra@gmail.com
Available At:
Chamber Number 222/6, District Court Compound, Surajpur, Greater Noida, Gautam Buddha Nagar 201306
Also At: IJLS & Partners, P3-362, Paramount Golfmart, Surajpur, Greater Noida, Gautam Buddha Nagar 201306

Supreme Court Ruling on FIRs: A New Era

“Ae khoon ke pyase, baat suno…”

When Rajya Sabha MP Imran Pratapgarhi posted these poetic lines on Instagram—lines echoing dissent and anguish—the Gujarat police responded by registering an FIR against him, citing provisions under the Indian Penal Code. But what followed wasn’t just a legal tussle over a social media post. It sparked a profound judicial reflection on how our criminal justice system must evolve in the age of voices and verses.

The Supreme Court of India recently delivered a landmark judgment that not only quashed the FIR but also took the opportunity to dissect the core procedural shifts introduced by the newly minted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—India’s replacement for the long-standing Code of Criminal Procedure, 1973 (CrPC).

The Old Order: CrPC and FIRs Without Pause

For decades, the rule was clear. Under Section 154 of the CrPC, if you walked into a police station and reported a cognizable offence, the police had no choice—they had to register an FIR. No second-guessing. No inquiry. Even if the complaint sounded outrageous, if it disclosed a cognizable offence, it had to be recorded.

This was reaffirmed in the famous Lalita Kumari case, where the Supreme Court clarified that a preliminary inquiry was not permissible unless the information failed to disclose a clear cognizable offence.

And while that ensured accountability and swift action, it also left space for frivolous or politically motivated complaints to enter the criminal justice pipeline, sometimes chilling free speech and honest dissent in the process.

Enter BNSS: A Law That Hears Before It Strikes

The BNSS seeks to address this imbalance, and in doing so, makes a “significant departure” from its predecessor.

In the recent judgment, the Supreme Court—through a bench comprising Justice Abhay Oka and Justice Ujjal Bhuyan—zeroed in on Section 173 of the BNSS, the counterpart of Section 154 CrPC. At first glance, the two look nearly identical. But the twist lies in sub-section (3) of the new provision.

Under Section 173(3) of BNSS, when an officer receives information about a cognizable offence punishable by 3 to less than 7 years of imprisonment, they can pause, seek permission from a superior officer, and conduct a preliminary inquiry—just to see whether there’s actually a prima facie case.

In other words, before the ink hits the FIR register, the officer has a window to filter out the noise from real offence.

Why This Matters: A Poet’s Case in Point

In Pratapgarhi’s case, the poem’s words were powerful, perhaps unsettling to some. But the Supreme Court emphasized that freedom of speech, especially political and poetic expression, is constitutionally protected.

Registering an FIR over such expression, without the due caution BNSS now allows, could result in misuse of process. And that’s precisely what the new law aims to prevent.

The Court explained: Just because words are spoken or written, doesn’t mean they amount to a criminal offence. A police officer must first read, understand, and apply legal reasoning. That act—of merely interpreting content—isn’t a “preliminary inquiry” barred under Section 173(1), the Court clarified. But under Section 173(3), if the offence falls within that 3-7 year range, an actual preliminary inquiry can and should be conducted before registering an FIR.

A Legal Tightrope: Speed vs. Scrutiny

The judiciary acknowledged the tightrope walk here. Too much discretion, and justice may be delayed or denied. Too little, and we risk weaponizing criminal law against dissenters, journalists, poets, and activists.

With Section 173(3), BNSS introduces a calibrated discretion. Not a license to avoid registering FIRs, but a tool to screen allegations with lower gravity—provided the officer gets a green light from a senior.

It’s a subtle but powerful change. One that says: “Let the law listen before it acts.”

A New Chapter in Criminal Justice

This judgment is not just about a poem or a politician. It’s about how the law treats the first whisper of an allegation. It’s about building a system that is as sensitive to constitutional freedoms as it is to criminal violations.

So as BNSS begins to shape the new face of procedural law in India, the message from the top court is clear: In a democracy, FIRs are not just legal documents—they are instruments of power. And power must be exercised with reason, not reflex.

Adv. Jayendra Dubey
advdubeyjayendra@gmail.com
Available At:
Chamber Number 222/6, District Court Compound, Surajpur, Greater Noida, Gautam Buddha Nagar 201306
Also At: IJLS & Partners, P3-362, Paramount Golfmart, Surajpur, Greater Noida, Gautam Buddha Nagar 201306

A Comparative Analysis: Section 156 of CrPC, 1973, and Section 175 of BNSS, 2023

In the evolving landscape of Indian legal procedures, the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a significant milestone. This new legislation brings forth modernized practices aimed at enhancing the efficiency and accountability of the criminal justice system. A critical comparison between Section 156 of the Code of Criminal Procedure (CrPC), 1973, and Section 175 of BNSS, 2023, sheds light on the progressive changes introduced by the latter.

Section 156 of CrPC, 1973: Empowering the Police

Provision Overview:

Subsection (1): Empowers any officer in charge of a police station to investigate any cognizable case without needing prior approval from a Magistrate.
Subsection (2): Allows police officers to investigate offenses even if they were committed outside their territorial jurisdiction.
Subsection (3): Enables a Magistrate to order an investigation into any case, ensuring oversight in instances where the police may not act.

Key Takeaways:

Scope and Authority: Section 156 grants wide-ranging powers to police officers, facilitating prompt action in cognizable cases without the need for immediate judicial oversight.
Jurisdictional Flexibility: Officers can investigate offenses outside their jurisdiction, ensuring that legal boundaries do not hinder the pursuit of justice.
Magistrate’s Oversight: The provision for Magistrate-directed investigations acts as a safeguard against police inaction, allowing citizens to seek judicial intervention.

Section 175 of BNSS, 2023: Modernizing Investigations

Provision Overview:

Digitalization and Modernization: Advocates for the use of digital tools and modern investigative techniques to improve efficiency and accuracy.
Stricter Timelines: Introduces deadlines for completing investigations to ensure timely justice.
Enhanced Accountability: Implements stronger oversight mechanisms to reduce instances of police misconduct or negligence.

Key Takeaways:

Technological Integration: By incorporating digital tools, BNSS aims to streamline investigations, ensuring better evidence preservation and quicker case resolutions.
Timelines: Stricter timelines prevent unnecessary delays, promoting a more efficient justice system. However, it is essential to monitor the practicality of these deadlines to avoid rushed or incomplete investigations.
Accountability: Enhanced oversight mechanisms, such as regular audits and penalties for non-compliance, aim to ensure that police officers adhere to ethical standards and procedural requirements.

Comparative Analysis

Empowerment vs. Oversight:

CrPC Section 156: Primarily focuses on empowering police officers with broad investigative powers.
BNSS Section 175: Balances empowerment with enhanced oversight and accountability, preventing misuse of power and ensuring thorough investigations.

Technological Integration:

CrPC Section 156: Traditional in its approach, with less emphasis on modern tools.
BNSS Section 175: Embraces digital tools and modern techniques, representing a progressive shift towards a more efficient investigation process.

Timelines and Efficiency:

CrPC Section 156: Does not specify strict timelines for investigations.
BNSS Section 175: Enforces strict timelines to expedite investigations, though the implementation and adherence to these timelines need careful assessment.

Jurisdictional Flexibility:

Both sections offer flexibility in jurisdiction, but BNSS includes more structured procedures to maintain uniformity.

Conclusion

Section 156 of CrPC has been a cornerstone in empowering police officers to investigate cognizable offenses swiftly. However, its lack of emphasis on modern investigative tools and accountability has occasionally led to inefficiencies and misuse of power.

On the other hand, Section 175 of BNSS addresses these gaps by integrating digital tools, imposing stricter timelines, and enhancing oversight mechanisms. These changes aim to make the investigation process more efficient, transparent, and accountable.

The success of BNSS in revolutionizing the investigative process will hinge on its effective implementation and the ability to navigate the practical challenges that may arise.

Adv. Jayendra Dubey

advdubeyjayendra@gmail.com