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

Understanding Exemption from Personal Appearance Under Sections 205 and 317 of CrPC

In criminal proceedings, the presence of the accused is generally required. However, Sections 205 and 317 of the Code of Criminal Procedure (CrPC), 1973, provide certain exemptions to this rule, ensuring flexibility and fairness in the judicial process.

Section 205 CrPC: Initial Stage Exemption

Section 205 allows a Magistrate to dispense with the personal attendance of the accused at the beginning or at any stage of the proceedings. This means that instead of appearing in person, the accused can be represented by their lawyer. This exemption can be granted if the Magistrate deems it reasonable based on the circumstances of the case.

Key Points:

Discretionary Power: The Magistrate has the discretion to decide based on the specifics of the case.
Conditions: The Magistrate may impose conditions for such exemptions, ensuring that justice is not compromised.

Section 317 CrPC: Exemption During Trial

Section 317 is applicable during an ongoing trial or inquiry. This section permits the court to continue with the proceedings even in the absence of the accused, provided their lawyer is present to represent them. The court must be satisfied that the absence of the accused will not affect the trial’s fairness.

Key Points:

Judicial Discretion: The court must record reasons for granting this exemption, ensuring that it is justified.
Representation: The accused must be represented by their lawyer during their absence.

Practical Considerations

Courts consider several factors before granting exemptions under these sections:

Nature of Offence: Seriousness and impact of the alleged crime.
Accused’s Conduct: Past behavior and compliance with court orders.
Hardship and Inconvenience: Practical difficulties faced by the accused in attending court.
Fairness and Justice: Ensuring that the trial remains fair and just without the personal appearance of the accused.

Conclusion

Sections 205 and 317 CrPC play a crucial role in ensuring that the judicial process is both fair and efficient. They provide a mechanism to avoid unnecessary hardship for the accused while maintaining the integrity of the trial. Courts use these provisions judiciously to balance the need for the accused’s presence with practical considerations of justice.

By understanding and effectively applying these sections, the judicial system can uphold the principles of fairness and justice without compromising on the efficiency and smooth conduct of legal proceedings.

Criminal Procedure – Object & Importance

There was at first no uniform law of criminal procedure for the whole of India. It was the Criminal Procedure Code of 1882 which gave for the first time such a uniform law of procedure. Later supplanted by Code of 1898 and then amended in 1923 and 1955. The Law Commission studied the previous codes and made various suggestion in it’s detailed 41st report. So, the code that you see, read and study now came into force on 1st April, 1974.

While drafting the code, three basic considerations, 1. Fair Trial 2. Avoidance of delay in investigation/trial 3. Fair deal to poorer sections has been kept in mind.

Object & Importance of Criminal Procedure

The law of criminal procedure is intended to provide a mechanism for the enforcement of substantive criminal law (i.e. Penal Code). The law of criminal procedure is meant to be complementary to criminal law; it creates the necessary machinery for;

the detection of crime,
arrest of suspected criminals,
collection of evidence,
determination of guilt or innocence of the suspected person, and
the imposition of proper punishment on the guilty person

lqbal Ismail Sodawala v State of Maharashtra (1975) 3 SCC 140

The Supreme Court has aptly stated in the above-mentioned case that: “It is the procedure that spells much of the difference between the rule of law and the rule of whim and caprice.”

The code further attempts to strike a just balance between the need to give discretionary powers to the functionaries under the Code to make the investigative and adjudicatory processes strong and effective and the need for controlling the probable misuse/abuse of these powers.

It has been rightly said that too much expense, delay and uncertainty (flaws and loopholes) in applying the law of criminal procedure would render even the best of penal laws useless and oppressive.

It may be noted that the procedural code is not wholly procedural or adjective in nature. There are certain provisions of the Code which partake of the nature of substantive law e.g. prevention of offences, maintenance proceedings, etc. The Code confers the ‘right of maintenance’, ‘right of habeas corpus’, ‘right of appeal’, etc.

Enactments regulating the procedure of courts seem usually to be imperative or Mandatory and not merely directory, In other words, the rules of procedure are enacted to be obeyed. The object of these rules is to simplify and shorten proceedings. The Code Is a complete code with respect to matters provided for by it. So far as it deals with any point specifically, the Code must be deemed to be exhaustive and the law must be ascertained by reference to its provisions.

However, absence of any provision on a particular matter in the Code does not mean that there is no power in a criminal court to make such order as the ends of justice required; the court may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited [Hansraj (1942) Nag 333].

Fair Trial

A person accused of any offence should not be punished unless he has been given a fair trial’ and his guilt has been proved in such trial. The requirements of a fair trial relate to the character of the court (unbiased judge), the venue (atmosphere of judicial calm), the mode of conducting the trial (fair prosecutor; no prejudices or threats against the witnesses), rights of the accused in relation to defence and other rights (Law Commission, 37th Report). The fair conduct of a trial upholds the dignity of man in a free society which diligently guards the rights, claims and privileges of its citizens against any encroachment upon them. Denial of a fair trial is as much injustice to the accused as is to the victim and the society.

The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. In fact, the primary object of criminal procedure is to ensure a fair trial to every person accused of any crime.

Adversary System of Trial

The system of criminal trial envisaged by the Cr. P.C. is the adversary system based on the accusatory method. In this system the prosecutor representing the State accuses the defendant (the accused person) of the commission of some crime; and the law requires him to prove his case beyond reasonable doubt. The law also provides fair opportunity to the accused person to defend himself. Thus, in an adversary system, both the parties are allowed to plead their cases, put forward their arguments, rebuttals, etc., with the help of evidence or counter evidence. The judge, more or less, is to work as an umpire between the two contestants.

Experience has shown that adversary system is by and large dependable for the proper reconciliation of public and private interests i.e. public interest in punishing the criminals and private interest in preventing wrongful convictions. The system of criminal trial assumes that the State using its investigating resources and employing competent counsel will prosecute the accused who, in turn, will employ equally competent legal services to challenge the evidence of the prosecution.

The above assumption has been found to be incorrect in one respect. Though the adversary system envisages equal legal rights and opportunities to the parties to present their respective cases before the court, such legal rights and opportunities in practice operate unequally and harshly, affecting adversely the poor indigent accused persons who are unable to engage competent lawyers for their defence. The system therefore departs from its strict theoretical passive stance and confers on the accused not only a right to be defended by a lawyer of his choice, but also confers on the indigent accused person a right to get legal aid for his defence at State’s cost (Sec. 304).

Further, apart from attempting to give legal aid to the indigent accused persons, the Code has suitably altered the notions of judge-umpire. The judge is not to remain passive as an umpire, but he has to play a more positive and active role for protecting the public interests as well as the individual interests of the accused person. For instance, the charge against the accused is to be framed not by the prosecution but by the court after considering the circumstances of case (Sec. 228), the prosecutor cannot withdraw the case without the consent of court (Sec 321), the court can examine the accused at any time to get explanations from him (Sec. 331).

Though the notion of adversary system of trial has undergone some transformation by legislative prescriptions and judicial gloss, it can still be reasonably considered as an essentially important component of the concept of ‘fair trial.”

Final Take Away:

Although we have come a long way from the times when there was codified procedure to follow and the present code provides ample solutions to the loopholes but it still requires several additions to it so that the balance of power could be maintained. Also, a legal system which is quick yet thoughtful and affordable, keeping Justice, Liberty, Equality and Fraternity in mind.