Pre-Trial Incarceration and the Misapplication of ‘Gravity of Offence’

A 24 year old male is arrested on the charges of taking part in a fight in his locality. No arms recovered. No grievous hurt to the complainant. Yet the accused is slapped with an FIR with sections which are non-bailable and brought before the Magistrate the following morning. The prosecutor repeats a sentence that appears to hold absolute import: “Your Honour, due to the seriousness of the offence, we are opposed to bail.” The judge concurs and the bail is thus refused. The suspect is remanded to judicial custody, where he will spend the next eight months, not that he’s guilty, not that he’s likely to flee, but because someone thought his alleged crime was “serious.” That is what’s wrong with the present judicial scenario. This is something that happens on a daily basis in India.

What’s profoundly distressing is that “gravity of offence” is no statutory basis on which to refuse bail, not in the repealed Code of Criminal Procedure, 1973 (CrPC), and also not in the Bharatiya Nagarik Suraksha Sanhita, (BNSS). And yet courts habitually make use of it, punishing accused persons before they are convicted. Such practice violates Articles 14 and 21 of the Constitution and undermines the rule of law. In BNSS Clause 479 (equivalent to Section 437 CrPC), a magistrate can refuse bail in cases of non-bailable crimes if there are good reasons to believe that the accused will flee, destroy evidence, or repeat offenses. Clause 481 (previously Section 439 CrPC) authorizes Sessions and High Courts to exercise more discretion, yet once again subject to defined parameters. Clause 187(3) provides default bail in case of failure to investigate in a timely manner. None of these provisions permit denial of bail on the basis of how grave an offence sounds. However, judicial officers make severity of offence a de facto trump card, frequently to displace the presumption of innocence. In this way, severity functions as a strong justification of delay in justice, not a useful legal provision.

Courts refuse bail not on account of any real peril, but on grounds of emotional gravity or likelihood of public outrage. In Sanjay Chandra v. CBI (2011) 3 SCC 1, the Supreme Court clarified that the gravity of a charge, in and of itself, cannot be a reason for denial of bail. In Arnab Goswami v. State of Maharashtra (2020) 14 SCC 12, the Court reaffirmed that open justice and personal liberty cannot give way to public sentiment. In Satender Kumar Antil v. CBI (2022) 10 SCC 51, the Court decreed systematic bail guidelines, highlighting proportionality, innocence presumption, and the importance of elaborate reasoning, yet did not take out the gravity doctrine from subordinate courts. A classic example is Yudhveer Singh Yadav v. CBI (Delhi HC, Oct 2024). In this case, a sub-inspector who was charged with bribery under Section 7 of the Prevention of Corruption Act was released on bail under BNSS Section 483.

The court reasoned: “The gravity of an offence cannot be the sole criteria for rejection of bail... bail shall not be withheld as a punishment... every man is deemed innocent until tried and proven guilty.” Furthermore, the constitutional violation is obvious in this particular judicial scenario as Article 21 protects personal liberty, enumerating that it can be restricted by fair, just, and reasonable procedure established in the law. Refusal of bail on an unlegislated, subjective test is neither reasonable nor fair. Article 14 enforces equality before the law and because gravity is not defined and applied in an inconsistent manner between courts, it leads to arbitrary and discriminatory justice.

The magnitude of the injustice caused by the delay of justice is staggering. 75-77% of India’s prison population is constituted by undertrial prisoners, individuals who have not been convicted, says the National Crime Records Bureau (NCRB). Many spend months, sometimes years, in jail before their trials are over. Conditions are congested (131% capacity); legal aid is unavailable; trials get postponed, not because the law is complicated, but because the mechanism in place to deliver justice is sluggish and discretionary.

The BNSS, though heavily advertised as a contemporary legal milestone with an aim of modernizings the Indian legal system with some even calling it a revolutionary act to righting the colonial wrongs, lost a critical chance to remediate the actual fault in the Indian bail system. It adopted CrPC’s discretionary bail system as it was, without adding binding instructions or prohibiting vague reasoning. There is no need to document denial reasons, justify risk analysis, or restrict arbitrary grounds such as gravity of offence. In fact, even the legislative and executive arms of government have realized the crisis.

The Union Ministry of Home Affairs issued an advisory seeking to encourage states to operationalize BNSS provisions, particularly Clause 479, to release undertrials who have served one-third or half their maximum sentence. The advisory specifically addressed default bail, rather than discretionary denial. With India aiming to pose a competition to the western powers in the economic world, it becomes crucial to look at how these countries assess the importance of timely justice. Justice systems in other democracies only view offence seriousness as a risk factor, not an independent bar. For example, in the UK, flight risk or danger to public safety alone justify denial of bail. In the US, courts evaluate prospective risk, rather than moral censure or public outrage. India’s persistence with gravity of offence is the exception, exceptional in that it has no basis in law and significant constitutional price.

At a minimum, the appellate courts under Articles 226 and 227 should carefully scrutinize bail orders based on gravity without statutory rationale. Second, the Supreme Court must clearly hold that such reasoning is a violation of Articles 14 and 21. Third, codified bail principles, required reasoning, trial time frames, presumptive bail for first-time offenders, and clear prohibition of the use of vague rationales such as gravity, are imperative with urgency. And lastly, judicial education must emphasize constitutional bail doctrine against incessant intuitiveness.

Fundamentally, bail is not mercy, it is a constitutional protection. The phrase “gravity of offence” sounds like it is legally significant, but it is a doctrine of custom, not law. Bail is not an act of charity; it is a fundamental commitment that guarantees your innocence until proven otherwise, emphasizing the importance of your freedom unless there is a legitimate reason to restrict it. The legal framework does not stipulate that seriousness alone justifies detention. The Constitution prohibits such practices. Nonetheless, it has become a customary occurrence. In this standard practice, lives are silently destroyed. Individuals lose their employment, families disintegrate, and hope diminishes, while they await trials that could extend for years. All this transpires before any guilt has been established.

The unfortunate reality is that our system penalizes individuals not for being guilty, but merely for becoming entangled in it. The term gravity has turned into a shortcut to bypass rights, to rationalize delays, and to overlook the actual legislation. This situation can be changed. The courts are aware of better principles. The Constitution calls for higher standards. And the populace deserves more. It involves safeguarding the innocent from being overlooked. At this moment, in jails across the nation, that is precisely what we are doing.

Mohammad Saqib B.A LLB (3rd Year) Lloyd Law School, Noida