Bail Decisions and Under-Trial Detention: An Introduction

August 4, 2017 | Deekshitha Ganesan

It is commonplace to acknowledge the pathological levels of under-trial detention in India, which has been estimated as 67.2% of the total prison population, as per the 2015 Prison Statistics of the National Crimes Records Bureau (NCRB). Under-trial detainees are persons who are arrested and imprisoned prior to being convicted of an offence. The ballooning under-trial population of India can be directly correlated to the number of arrested persons who are denied bail by criminal courts at various stages of the criminal process.


‘Bail’ is the conditional release of an arrested person, with a promise to appear in court when required. The Code of Criminal Procedure 1973 (CrPC) categorises offences into bailable and non-bailable. A person arrested for a bailable offence may secure bail at the police station, while those who fail to secure police bail and those arrested for a non-bailable offence have to secure bail in court.


Every arrested person is legally required to be produced in court within a period of 24 hours, as mandated by Section 57 read with Section 167(1) of the CrPC, which find their basis in Article 22 of the Constitution of India, 1950. The ‘first production’ of an arrested person is the first occasion when a decision on bail is made and where there is an oversight by the courts. A ‘bail decision’ may be made at multiple points of intervention in the criminal justice process, following arrest. However, ‘first production’ remains the first critical point where the crime control machinery is subject to due process requirements.


Three outcomes are possible at first production – (i) bail, (ii) remand the arrested person to the custody of the police for further investigation or (iii) remand the arrested person to judicial custody i.e. imprisonment in jail. The decision between these three options should be guided by the need to balance individual liberty of the arrested person pending investigation or trial and ‘crime control’ considerations like flight risk, interference with investigation and threat to society. In addition to these factors, several other substantive and procedural considerations may shape a legal assessment on bail.


Despite its critical nature, no academic or policy study has focused on the site of first production. In our research, we have designed a qualitative study of court observations over a period of 45 days in lower criminal courts chosen randomly in three districts in Karnataka i.e. Bengaluru, Dharwad, and Tumakuru. We have analysed the effect of certain substantive and procedural factors on bail decisions like (i) nature of the offence, (ii) range of punishment, (iii) handcuffing of an arrested person, (iv) interaction with the court and (v) availability of legal representation.


More details on our findings can be accessed here.

Deekshitha Ganesan

Research Associate

View profile