Bail refers to the release of the person from legal custody. Every criminal
offense is an offense against the state, thus whether bail is granted or
rejected has a significant impact on society. In deciding whether to grant or
refuse bail, the sanctity of human liberty and the interests of society must be
The principle of bail is that it functions as security filed by the accused
individual, allowing him to be freed on a temporary basis but requiring him to
appear in court whenever necessary by the court. While the accused person's
trial is still ongoing, the bail procedure takes place. In most cases, an
individual requests this option in order to be freed from police custody. Bail
is a legally binding procedure.
This article mentions the several provisions of bail including bailable offence
and non-bailable offences, and several kinds of bail i.e., interim, regular,
statutory, and anticipatory bail. It further mentions the authority of the lower
courts including the magistrate, court of session and high court to grant the
bail while taking into account the necessary conditions and requirements and if
necessary to cancel the bail considering the essential elements.
The Indian constitution guarantees every person regardless of their citizenship,
the protection of life and personal liberty under Article 21. It assures the
fundamental right to live with dignity and personal liberty. Therefore, when one
gets arrested by the law enforcement authority, then people have the right to
ask for bail, however, depending on the nature of the offense it is at the
discretion of the court whether to grant bail or decline bail application.
The bail provisions are based on the legal principle 'presumption of innocence'
which means that the person accused of any crime is considered innocent until
proven guilty. The given fundamental principle is mentioned under Article 11 of
the Universal Declaration of Human Rights.
Bail is not defined in the CrPc but the Bail can be seen as the process of
procuring the release of an accused who is charged with offenses, ensuring and
considering his presence in the court of law when he/she is called or during the
proceedings and compelling him to remain within the jurisdiction of the court.
According to the Black's Law Dictionary, bail is the security required by the
court to release the prisoner who shall appear in the future time in the court
Legal stand of Bail
Bail is not defined under the Criminal Procedure Code, 1973. Section 2(a) of
CrPc defines the terms 'Bailable offense' and 'non-bailable offence'. Bail
provisions and bail bonds are specified under sections 436-450 of CrPc.
Categories of Bail
In order to obtain bail, offences are classified into two categories as:
- Bailable offences
- Non-bailable offences
Section 2(a) of Crpc defines bailable offences as the offenses which are
classified as bailable in the First Schedule of the Crpc or classified as
bailable under any other law. Bail is a matter of right if a person is accused
of bailable offences such as forgery, theft, stalking, misappropriation of
property, etc. When accused has furnished the bail, the police officer or any
other authority has no right to reject the bail in such cases. Section 436
provides that when a person accused of bailable offences is arrested or detained
by any police officer without a warrant and while in the custody of the police
or brought before the court at any stage of the proceeding has the right to be
released on bail.
The hon'ble apex court in the case of Rasiklal v. Kishore Khanchand Wadhwani,
2009, held that Section 436 of Crpc grants the right to claim bail in bailable
offences is absolute and indefeasible right.
Dharmu Naik v. Rabindranath Acharya,
1978, the court held that the
refusal to issue bail in violation of Section 436 of the code renders the
detention unlawful, and the police officer responsible for the detention may be
charged with wrongful imprisonment under Section 342 IPC.
Section 2(a) of Crpc mentions non-bailable offences as any offences other than
bailable offenses are known as non-bailable offences. Any person who is accused
of non-bailable offenses cannot claim bail as a matter of right. The person
accused of non-bailable offenses can secure bail if he doesn't fall under the
- There are reasonable reasons to assume he committed an offense
punishable by death or life in prison.
- That the accused committed a cognizable offence and had previously been
convicted of an offence punishable by death, life imprisonment, or
imprisonment for seven years or more, or that the accused had been convicted
of a cognizable and non-bailable offence on two or more times.
Furthermore, there are a few exceptions where the law gives special
consideration to conditions such as the accused being under the age of sixteen,
a woman, a sick person, and so on (provided in section 437(1) of Crpc).
Kinds of Bail:
Regular Bail:Regular bail is a legal procedure that allows a judge to order the release
of someone detained on suspicion of committing an offense, often on the
condition that the individual does not flee or otherwise obstruct the
administration of justice. These conditions may need the execution of a
"personal bond" or the execution of a bond with sureties by a court. When a
person is held on suspicion of committing a bailable offense, bail becomes a
right, and the individual may be freed using the procedures provided in
Section 436 CrPC. When a person is arrested on suspicion of a non-bailable
offense, bail is discretionary, and the accused may be released only if a
strong case is established.
Section 437 governs bail petitions filed in magistrates' courts, whereas
Section 439 governs bail applications filed in Session or High Court
courts. According to Section 437 of the CrPC, the granting or rejection of
ordinary bail is an exercise of judicial discretion regulated mostly by
norms and a few bright-line laws.
Kanwar Singh Meena v. the state of Rajasthan and others, the court
held that, section 439 of the code gives the court of session and high court
additional jurisdiction in granting and canceling bail, courts also need to
consider the following factors:
The Court further stated that each criminal case presents a unique
factual context that influences the court's bail decision.
- character, evidence, position, and standing of the accused
- nature of offence or its seriousness
- possibility of the accused evading justice
- among other reasons, the danger of tampering with evidence and
influencing or manipulating witnesses
Interim Bail: Interim bail is a temporary bail given by the court while any case is
pending or until the court hears an anticipatory bail or regular bail
application. Section 438 relates to the court's ability to grant an
interim order during a pending anticipatory bail hearing.
It is granted in accordance with the circumstances of the case. The interim
bail period can be extended, but if the accused person fails to pay the
court for confirmation and/or continuation of the interim bail, his freedom
will be forfeited, and he will be imprisoned or a warrant issued against
This differs from anticipatory bail, which is granted while the bail
application is pending. Interim bail is only available to accused persons
who think they have been wrongfully accused of a crime and want to get out
of jail or on bail as soon as possible. Although there is no distinct
Section in the CrPC for interim bail, the same limits apply.
When a person applies standard or regular bail, the court normally schedules
the application after a few days to evaluate the case diary, which must be
obtained from the police authorities, and the applicant must remain in jail
in the interim or subsequent period. Even if the applicant is later released
on bail, his reputation in society may suffer irreparably. A person's
reputation is a valuable asset and a component of his constitutional right
under Article 21.
As a result, it is possible to conclude that the ability to issue bail
includes the court's inherent jurisdiction to provide temporary release to a
person pending the final decision of the bail application. Although the
court has the ability to issue interim bail, it is an option.
Essentials of Interim bail:
- It is offered only temporarily or for a short period.
- It is granted while a court application for anticipatory or normal
bail is pending.
- When the offender's bail term ends, he or she will be arrested
without a warrant.
- There is no standardized process for canceling Interim Bail.
Section 438 authorizes the court to issue an interim order in the context of
a pending anticipatory bail hearing. Although interim bail is not mentioned
in the CrPC, the courts have frequently used their judgements to determine
the meaning and scope of interim bail.
In the case of Sukhwant Singh and ors. And State of Punjab,
interim bail was described as a mechanism to safeguard the accused's
reputation. In this decision, the Supreme Court determined that the courts'
jurisdiction to award interim relief is inherent in their power to grant
bail. The concept of interim bail is crucial because an accused may face
arrest even before his bail verdict is delivered. Interim bail is therefore
given when the court believes it is essential to protect the accused from
being unfairly detained or imprisoned.
Statutory Bail: Statutory bail is found in Section 167(2)(a) CrPC. It states that the
Magistrate may allow the accused person to be detained other than in police
custody for up to 15 days, but no more than 90 days if the inquiry relates
to an offense punishable by death, life imprisonment, or more than ten years
in prison, and 60 days if the inquiry is about anything else. If the inquiry
is not completed within 90 or 60 days, the accused should be granted bail.
Nonetheless, the court may impose such limitations on bail as it considers
This is often referred to as obligatory bail or default bail. This is a bail
right that emerges when the police fail to complete an investigation
involving a person in judicial custody within a particular time limit.
Default bail is a legal right regardless of the nature of the offense. The
time restriction for filing the charge sheet begins on the day the accused
is initially apprehended. Section 173 of the Criminal Procedure Code
requires a police officer to file a report after conducting an adequate
investigation into an offense. This report is commonly referred to as the
"Charge Sheet" in common parlance.
Bikramjit Singh v. State of Punjab, The Supreme Court ruled that
an accused has an intrinsic right to "default bail" if he applies after the
time limit for investigating an offense has passed but before a charge sheet
is filed. The right to default bail under Section 167(2) of the CrPC is not
only a statutory right; it is also a component of the judicial system
established by Article 21. In general, the right to bail on the failure of
the investigating agency is viewed as an "unalienable right," however it
must be used at the appropriate time.
Anticipatory Bail: under Indian criminal law, anticipatory bail is provided for under Section
438 of the Criminal Procedure Code of 1973. In its 41st Report, the Law
Commission of India emphasized the need to include a provision in the Code
of Criminal Procedure that allows the High Court and Court of Sessions to
grant "anticipatory bail."
This Section allows a person to request bail before being arrested on
suspicion of a non-bailable offense. The main reason for establishing this
Section was to guarantee that no one was imprisoned in any way until and
until they were proven guilty.
If a person has reason to believe that he may be arrested on suspicion of
committing a non-bailable offence, he may apply to the High Court or the
Court of Session under this Section for a direction that he be released on
bail in the event of such an arrest, and the court shall grant him
The court takes the considerations into account while granting anticipatory
bail, section 438(1A) addresses such elements and considerations for
granting anticipatory bail:
Rukmani Mahato v. State of Jharkhand, the apex court
instructed Trial Courts not to grant regular bail to an accused if he or she
has already secured interim anticipatory bail from a superior court and the
case is still pending before the higher court.
- nature and seriousness of the charge or case
- The applicant's history, notably whether he has ever been imprisoned
following a court conviction for any cognizable offense.
- The applicant's capacity to evade prosecution.
- If the charge is established with the intention of injuring or
humiliating the applicant by arresting him, either reject the
application immediately or issue an interim order providing anticipatory
Cancellation of Bail
Section 437(5) of the code, gives the power to cancel the bail to the lower
courts, including magistrates, whereas high court and court of session have the
authority to cancel the bail under section 439(2) of the code.
According to the CrPC, the accused, public prosecutor, complainant, or any other
aggrieved party may use the right to terminate or rescind bail. The High Court,
Court of Session, and several lower courts, including Magistrates, also have the
ability to rescind previously granted bail. Other than the High Court and the
Court of Session, courts can only cancel bail granted by them. The cancellation
powers of the High Court and Court of Session are broader, and they can even
rescind bail given by lesser courts.
In the case of Rubina Zahir Ansari v. Sharif Altaf Furniturewala
Supreme Court held that Section 439(2) of the CrPC states that the
jurisdiction of the Court of Session and the High Court is concurrent. The
injured party may apply to the Court of Session or the High Court to have the
magistrate's bail revoked. Also, it would not be a violation of judicial decorum
if such a petition was presented to the Supreme Court rather than the Court of
If bail is canceled due to a subsequent occurrence or a fact unknown to the
prosecution and the court when bail was granted, the petition under Section
439(2) or Section 437(5) may be filed in the same court.
Mahipal v. Rajesh Kumar and another
, the Supreme Court held that if
the judgment at issue is completely unreasonable and unjustifiable, the court
may exercise its jurisdiction under Section 439(2) of the CrPC to revoke the
respondent's bail. Aside from these, bail cancellation may be utilized in the
- On the merits of a case, particularly if the order granting bail was
irrational, made without adequate consideration, or in violation of any
substantive or procedural legislation;
- On the basis of misuse of liberty following the issuing of bail or other
The right to life and personal liberty is just too vital to be overlooked. The
Indian judicial and legal systems have regularly emphasized the importance of
such inalienable human rights, particularly in the context of bail approval and
rejection. However, courts must keep in mind that dishonest litigants and
persons must be dealt with harshly when they use and abuse judicial instruments.
The law undoubtedly aids and supports the righteous, but it cannot be used to
facilitate or carry out a false strategy.
There is also a strong need for comprehensive bail reform that takes into
consideration the socioeconomic position of the majority of our population. When
granting bail, the court must be sympathetic to the accused's socioeconomic
condition. A detailed investigation may be done to determine whether the accused
has community ties that would prevent him from fleeing the courtroom.
- Indian Consti. Article 21
- The Code of Criminal Procedure, 1973, Section 2(a), No. 2, Act of Parliament, 1973 (India)
- Rasiklal v. Kishore Khanchand Wadhwani AIR 2009 1341
- The Code of Criminal Procedure, 1973, Section 436, No. 2, Act of Parliament, 1973 (India)
- Indian Penal Code, 1860, Section 352, No. 45, Act of Parliament, (India)
- The Code of Criminal Procedure, 1973, Section 437(1), No. 2, Act of Parliament, 1973 (India)
- The Code of Criminal Procedure, 1973, Section 439, No. 2, Act of Parliament, 1973 (India)
- Kanwar Singh Meena v. the state of Rajasthan and others (2012) 599 SC
- The Code of Criminal Procedure, 1973, Section 438, No. 2, Act of Parliament, 1973 (India)
- Sukhwant Singh and ors. And State of Punjab, 1995 3 SC 367
- The Code of Criminal Procedure, 1973, Section 167 (2)(a), No. 2, Act of Parliament, 1973 (India)
- The Code of Criminal Procedure, 1973, Section 173, No. 2, Act of Parliament, 1973 (India)
- Bikramjit Singh v. State of Punjab (2020) SC 824
- Rukmani Mahato v. The State of Jharkhand, (2017) 15 SCC 574
- Rubina Zahir Ansari v. Sharif Altaf Furniturewala (1978) 1 SCC 1 18
- The Code of Criminal Procedure, 1973, Section 439(2), No. 2, Act of Parliament, 1973 (India)
- Mahipal v. rjesh Kumar and ors. (2019) 1205 SC
Written By: Pooja Yadav
(Provision for Bail under CrPc), B.A. LLB(Hons.),
21 Amity University, Uttar Pradesh