Bail means short-term release of an accused person awaiting trial. Bail is the
judicial release of an accused charged with the certain offence by imposing some
restrictions on him and compelling him to remain within the jurisdiction of
court. So, if we look on the background history of this concept. Originally, the
word is derived from the old French word 'bailer' which means to give
The idea of bail was first institute in England. Getting inspired from
that India also, then introduced this concept. The concept of bail has come
under the extent of human rights since the UN declaration of Human Rights of
1948. Law commission in its 41st report conduct out the recommendations to the
parliament and these recommendations were examined and incorporated by
parliament in criminal procedure code, 1973.
Streamlining of the law on bails was organized in the structure of basic
principles of personal liberty to see that these are concisely affected and a
flexible mechanism adapted to secure attentiveness of the community through an
exercise of judicial discretion. The approach appears to be constant with the
policy and motive of the institution of bail.
According to this act the offences
are categorized into two categories:
offence (it is the type of offence in which the accused person is granted bail.
Under section 2(a) of the code this term has been defined) and Non Bailable
offence (it is the type of offence in which accused is not entitled to get
bail). So, the question lies here is that 'cases in which bail may granted'? In
the case of bailable offence it is mandatory for the court to grant the bail to
accused person and in cases of non bailable offence it depends on the discretion
of the court whether court thinks fit to grant bail to accused or not.
There are commonly 3 types of bail in which accused can seek his remedy:
The provisions relating to the bail and bonds have been given under section 436
to 450 of the Criminal Procedure Code. These provisions foresee in the code
gives the brief concerning the provisions of the bail.
Let's discuss each section in brief:
Section 436 (in what cases bail is to be taken) – This section makes
provision for a bail of a person who is accused of any offence other than non bailable
offence. The conditions of bail which is given under this section are:
- He has been arrested or detained without warrant by an officer in charge
of a police station.
- He appears or brought before a court.
- He must be prepared at any time while in the custody of such officer or
at any stage of the proceeding before court to give bail.
This section also empowers the court to grant the bail only on executive bond
from the accused without taking any sureties for his appearance. In Aftab Ahmad
V. State of U.P
(1990), court held that an indigent person may be discharged on
executing bond (a formal written agreement by which a person undertakes to
perform/abstain from doing a certain act. Failure to do so, may attract monetary
penalty) without sureties (a promise to fulfil an undertaking; or a promise to
answer for the debt/default of another).
The power of magistrate to grant a bail
doesn't depend on his competence to try the case but on the punishment
prescribed for the offence.
You are accused of causing hurt u/s
323 I.P.C. were arrested on 1 April 2009 and have been not able to provide bail.
You must be released on bail/personal bond without guarantee by 8 April 2009.
According to the sub clause (2) of this section if the person has failed to
comply with the condition on which he had received bail (for example- regarding
to time and place of attendance) is bound to pay the penalty imposed by the
court under this section.
The catch of this section is that in this section bail is the legal and
fundamental right of the accused and court is also bound to grant bail to the
accused only under bailable offence. If than also any police officer detained
the accused or doesn't provide bail to him than he is liable for the wrongful
confinement under I.P.C. This was held in the landmark judgment of Supreme
Court in Vaman Narain V. State of Rajasthan
The basic rule against this
is that India is a democratic country and the basic concept of democracy is that
every individual must have personal liberty and freedom. It is the fundamental
right of an individual which is secured by the state. Thus, the idea of bail and
personal liberty goes hand in hand and consequently every individual involving
the accused person has the right to look for bail in order to get him release
from imprisonment until and unless proven guilty by a court of law. As stated
under Article 21 of the Indian Constitution that the life and personal liberty
of a person cannot be deprived except by the procedures laid down by the law.
Section 436(A) of CrPC:
This section was inserted via amendment in 2005. It
deals with the maximum period for which an under trial prisoner can be detained.
As per the section if a person has go through detention for a period of nearly
one half of the maximum period of imprisonment describe for the offence for
which he is being tried, he shall be free by the Court on a personal bond with
or without guarantee. This imprisonment must be during the investigation,
inquiry or trial of the case and not during the serving of judgment after the
The Court can also order imprisonment for a longer period than one
half of the said period or get release on bail in lieu of the personal bond if
it deems this fit with reasons after listening the Public Prosecutor. A person
can nevertheless not be detained even by a court order after the maximum length
of imprisonment provided for the offence during investigation, inquiry or trial
even if release is not permitted. It does not apply to persons charged for the
offences including death sentence.
You are an accused of
committing a theft u/s 379 IPC and have been in jail for 3 years or more. It's
your right to be free on bail/personal bond u/s 436A Cr.P.C. In Mantoo Majumdar
v. State of Bihar
, the Supreme Court held that the under trials right to
personal liberty and direct the release of the petitioners on their own bond and
without the sureties as they had so far finished six years await their trial in
Section 437 (Bail in non bailable offence):
When any person accused of or
suspected of the commission of any non bailable offence is arrested on
detained/appears or is brought before a court (other than High court/ court of
session), he may be released on bail, but:
- Such person shall not be released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or
- If such offence is a cognizable offence and he had been previously
sentence of an offence punishable with death, life imprisonment for 7 years
or more, or he had been earlier convicted on two or more instance of a non bailable
and cognizable offence. But a person who is:
- Under age of 16 years
- A woman
- A sick
- Infirm person may be released on bail even if the offence charged is
punishable with death on imprisonment for life or the accused is previously
This section basically dealing with the bail of an accused person who committed
a non bailable offence. This section also provides other mandatory
provision (for example – according to 437(2), if there is no sufficient ground
for believing that accused is guilty of a non bailable offence but there is
sufficient ground for further inquiry, he can be released on bail)
and guidelines while granting a bail (nature and seriousness of the offence,
reasonable apprehension of witness being tempered etc.).
In Kalyan Chandra
Sarkar v. Rajesh Yadav
under para 11 it was notice that:
The court granting bail
should exercise its discretion in a judicious manner and not as a matter of
course. Under section 437A of CrPC, it has been defined that in order to appear
in the higher court and when the higher court issues the notice against the
decision of the court it becomes obligatory for the trial court or the appellate
court which requires the accused to fulfill the bail bond with sureties.
Section 438 (Anticipatory Bail):
According to the ordinary law, the bail is
provided after the arrest but anticipatory bail is pre arrest bail which is
taken prior to arrest. Anticipatory bail is stated under Section 438 of CrPC
which defines that when the courts feels that the accused is falsely involved in
the case and arrest would harm his honour and dignity than with imposing certain
conditions court grant anticipatory or pre arrest bail to the accused person.
There is no provision on the limit of anticipatory bail but the common limit is
all over the trial or proceedings. Anticipatory bail is back in Uttar Pradesh
after nearly 33 years. The provision was thrown out in 1976 during the
emergency. In Samunder Singh vs. State of Rajasthan (1987), it was upheld that
all the circumstances related to dowry death was not allowed for the
- There should be reasonable apprehension of arrest- The pre arrest
bail is granted by the court only when the person satisfies the court that
he is falsely involved in the case.
- Non Bailable offences - Pre arrest bail is only granted in the matters of
non bailable offences.
- Application must be given before the arrest of the accused
Both the session court and high court has the power to permit
anticipatory bail but in accordance with the plan of action first the
application of anticipatory bail must file in session court and if its banish by
the court than the accused can challenge it in high court.
Section 439 (special power regarding bail):
The high court or court of
session can issue a direction that any accused of an offence and in custody
should be released on bail. If the offence is of the nature defined in 437(3).
It can direct any condition imposed by a magistrate when releasing any person on
bail be set aside or modified.
Cancellation of Bail:
The power to cancel the bail has been given to the court
and not to the police officer. Secondly, the court which accepted the bail can
alone cancel it. The bail granted by police officer cannot be cancelled by the
court of a magistrate. For cancellation of the bail in such a situation, the
power of high court or session court has to be involved.
It is major to doubt first and then demonstrate but the presumption of innocence
is also necessary. With this concept, the provision of granting bail was
introduced. It has shown as a remedy to let the innocent man is saved from
expend his time in jail earlier his trial and also allows him to increase his
case preparation while permitting the lawyer to create a good understanding of
the case. The basic law relating to bail is laid down in sections 436,437, 438
and439 of the code.
It can be concluded that the concept of bail is that it acts
as security lodged by the accused person on the basis of whom he can be released
on a short-term basis but needs to present in court whenever required by the
court. The procedure of bail takes place while the trial of the accused person
is still undecided. Normally, a person seeks this option in order to get himself
free from the police custody. These provisions foresee in the code gives the
brief concerning the provisions of the bail. The process of bail is a lawful