Bail Decisions – Should Indian law recognise the distinction between Pre-Trial and Under-Trial Detention?

September 21, 2017 | Deekshitha Ganesan

In the previous post, we briefly looked at the possible outcomes of a ‘first production’ at the pre-trial stage and the factors that are relevant to a bail decision. A legal assessment on whether bail may be granted or refused can take place at multiple points in the criminal process, including but not limited to the first production. This begs the question – does the stage at which a bail decision is made, matter?



At the pre-trial stage, a person is arrested on a reasonable suspicion of having committed an offence. At this stage, bail may be granted under Sections 436 and 437 CrPC, on weighing different factors. Once a charge sheet is filed naming an arrested person as an ‘accused’, the ‘trial’ officially commences – this is the under-trial stage. Curiously, Sections 436 and 437 govern a bail decision.


Neither the United Kingdom nor the United States distinguishes between the pre-trial and under-trial stages with respect to a bail decision. Securing the presence of an arrested person in court and the risk of offences being committed during the period of release influence a decision on remand and bail (at any stage of the criminal process). Particularly in the UK, the framework of the European Union’s Strasbourg Convention guides the law on bail: (i) presumption of liberty and innocence, (ii) individual assessment of every case and (iii) imposing the least restrictive regime pending trial.


In India, the National Crime Records Bureau (NCRB) has collected data on the pre-trial and under-trial stages as part of its Crime in India Reports i.e. the reports cover all stages of the criminal process until trial judgment. However, the Prison Statistics, also released by the NCRB, do not distinguish between pre-trial and under-trial stages while analysing the problem of prisoner detention in India. It clubs the two categories together by defining ‘under-trial’ prisoners as those who have been committed to judicial custody pending investigation or trial.


At the pre-trial stage, law enforcement agencies operate merely on a suspicion without having brought a ‘charge’. Hence, detention at such an early stage should not be treated the same way as detention after a charge sheet is filed. The failure to make a distinction between the under-trial and pre-trial stages affects the nature of legal and policy response to the ballooning prison population in India, which mistakenly attempt to tackle both stages of detention similarly.


Therefore, the difference between pre-trial, under-trial stages and bail decisions at each stage ought to be recognised and separately studied. Early release at the pre-trial could also help address the adverse physical, psychological and economic impacts that long periods of incarceration have on prisoners.

Deekshitha Ganesan

Research Associate

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