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Bail: Definition, Type, Procedure Of Getting Bail, Cancellation Of Bail

Bail forms one of the basic parts of criminal jurisprudence and is a well-recognized practice among most legal systems all around the world. In India, the concept of bail is explained in the Criminal Procedure Code, 1973.

Though the definition of bail is not given, it clearly defines the Bailable and Non- Bailable offences.

The question of bail arises when the person is detained by law enforcement. Bail can be granted after the security is deposited. The monetary value of the security is decided by the court, it's at their discretion as there is no statutory limit on the monetary value of the security deposit.

The security may be cash, the papers giving title to the property or the bond of private persons of means, or a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security.[1]
What is Bail?

As mentioned above, the Criminal Procedure Code, 1973, does not define bail, although the term bail generally means the release of an accused in an offense after he gives surety to be abiding by the conditions imposed by the court and stand his trial before the court.[2]

There are two types of offences:

  1. Bailable Offences:

    They are offences of a less serious nature with three years or less imprisonment. In these types of, offences getting bail is considered as the right of the accused. Some Examples are theft, bribery, cheating, Etc.
  2. Non-Bailable Offences:

    They are offences of serious nature, punishment is high even life imprisonment or a death sentence. Bail is not considered as a right in these offences, the court has the discretion to grant bail after hearing the facts of the case. Some examples are rape, homicide, etc.

Type of Bails

  1. Regular Bail:

    It is provided by the competent authority after the accused is arrested under Section 437 and 439 of the Criminal Procedure Code, 1973 in the case of non-bailable or bailable and cognizable offences.
  2. Anticipatory Bail:

    Section 438 of the Criminal Procedure Code, 1973 provides that any person who has a reason to believe that he might get arrested in any non-bailable or bailable offence he can reach the court before the arrest to get bail.
  3. Interim Bail:

    It is the temporary bail granted by the Court till the anticipatory or regular bail application is pending in the court.[3]

How Can You Get Bail?

Regular Bail

In Bailable Offence- In this offence it is a person's right to get a bail which can be provided:
  1. Either by the Police officer in charge of the case itself.
  2. Or by the Judicial Magistrate Court on furnishing the surety by the arrested person. But if the accused is not able to give surety he can be released on execution of a bond without any surety.

In Non-Bailable Offence:

In this offence getting bail is not the right of the accused it depends on the discretion of the person given authority to grant bail which can be provided by:
  1. A police officer in charge of the case has the authority to grant bail in this offence. But he has to mention the reason for granting the bail in the case diary and also has to furnish the bail bond.
  2. But if the offence has the maximum punishment of life imprisonment or death penalty then police officer has no power to grant bail.
  3. If bail is not given by the police officer in charge accused can reach the Magistrate Court for bail in an offense that doesn't have a maximum punishment of life imprisonment or death penalty.
  4. Only Session Court and the High Court have the Jurisdiction for granting bail in offences with a maximum punishment of life imprisonment or death penalty after imposing certain condition which they seem necessary. And they also have to give notice to the public prosecutors to oppose such bail.

Reasons on which bail in a Non-Bailable offence is granted are:

  • If the accused is a woman or child, bail can be granted in a non-bailable matter
  • If there is a lack of adequate evidence, the court can grant bail in the non-bailable offence on discretion.
  • If there is a delay in registering the FIR by the complainant
  • If the person accused is physically or gravely sick.
  • If there is some corroboration as to personal animosity between the accused and the person who filed the criminal matter.[4]

On 03 Aug 2017, Supreme Court in case of Rukmani Mahato vs. state of Jharkhand[5], directed the trial court to not grant regular bail in any case in which the anticipatory bail is already granted.

Anticipatory Bail
It can be filed in both Bailable and Non-Bailable offences. Hon'ble Supreme Court in case of Gurbaksh Singh Sibbia Etc vs State Of Punjab[6], for the first time, clarified the law relating to Anticipatory Bail.

The application for anticipatory bail can be filed only in the Sessions Court or the High Court. The accused shall along with his Counsel file for an anticipatory bail in the concerned Court affixing the relevant affidavits, copy of FIR, and Vakalatnama signed by the accused.

Factors taking under consideration before granting Anticipatory Bail:

  • The nature and gravity of the accusation.
  • Prior criminal record of the accused.
  • The possibility of the applicant fleeing from justice.
  • Where the accusation has been made to damage the reputation of the applicant, the court can either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

Conditions imposed by the Courts after granting the Anticipatory Bail:

  • The person shall make himself available for interrogation by the police officer as and when required.
  • The person shall not, directly or indirectly, make any inducement, threat, or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the court or any police officer.
  • The person shall not leave India without the previous permission of the court. [7]
On 29 Jan 2020, Supreme Court in case of Sushila Aggarwal and others vs State (NCT of Delhi) and another[8], states that anticipatory bail is not for the fixed period of time it can continue till the end of the trial.

Interim Bail

There is no express provision for granting interim bail in the Code of Criminal Procedure.

The Supreme Court in the case of Sukhwant Singh vs State of Punjab[9], states that the courts have the inherent power to grant the Interim bail while hearing a plea for the regular bail.

It is also advised that the Judicial Magistrate should also exercise the power of granting the Interim bail to the accused to prevent the abuse of criminal law.

But if the tenure of Interim bail expires before granting of regular or anticipatory bail then the accused can be arrested.[10]

Cancellation of Bail

A comparison of Section 439(2) and 437(5) of CrPC clearly shows the wide power of the High Court and Session court to cancel the granted bail.

Superior courts use this power mainly when the order granting bail being perverse, or passed without due application of mind or in violation of any substantive or procedural law.

Section 437(5) [11] provides for the cancellation of bail by the Magistrate Court on the ground of misuse of liberty after the grant of bail or other supervening circumstances.

Identical ground for cancellation of bail under section 439(2) and 437(5):

  • misuses his liberty by indulging in similar criminal activity,
  • interferes with the course of the investigation,
  • attempts to tamper with evidence or witnesses,
  • threatens witnesses or indulges in similar activities which would hamper the smooth investigation,
  • attempts to flee to another country,
  • attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,
  • attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive.[12]

"The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process". - Justice V.R. Krishna Iyer

Personal Liberty is one of the fundamental rights under Article 21 of the Constitution of India. By keeping someone in jail until he proved innocent it is a violation of Article 21. That's why the concept of bail came into existence to stop the misuse of criminal law.

A criminal offence is an offence against society so while providing bail in criminal offences court should keep in mind the social structure of the society.

There is still a lot of scope for improvement in the bailing system in India. There should be a balance between the free use of the Right to Liberty and the Social structure of the society so both of them can prosper candidly.

  1. The Criminal Procedure Code, 1973.
  2. R. V. Kelkar & K. N. Chandrasekharan Pillai, Criminal Procedure (Cr.P.C) 290 ( Eastern Book Company, 2001).
  3. The Criminal Procedure Code, 1973.
  4. Bail, Anticipatory Bail, Mandatory Bail & Bail After Conviction, Sri M.Sreenu, Principal Junior Civil Judge, Rayachoti, (13, February, 2018), (last visited 03/03/2021).
  5. Rukmani mahato vs. state of jharkhand, Special Leave Petition (Criminal) Nos. 2411/2016.
  6. Gurbaksh Singh Sibbia Etc vs State Of Punjab, 1980 SCC (2) 565.
  7. Workshop paper on Criminal- "Law relating to Bail", District Court-Chandrapur, (27, August, 2016), (last visited 03/03/2021).
  8. Sushila Aggarwal and others vs State (NCT of Delhi) and another, Special Leave Petition (Criminal) Nos.7281�7282/2017.
  9. Sukhwant Singh vs State of Punjab, S.L.P. (Crl.)No. 3529 OF 2009.
  10. Bail Pending Petition for Bail, S. Mohamed Abdahir, Additional Director, Tamil Nadu State Judicial Academy, (last visited 03/03/2021).
  11. The Criminal Procedure Code, 1973.
  12. Bail, Anticipatory Bail, Mandatory Bail & Bail After Conviction, Sri M.Sreenu, Principal Junior Civil Judge, Rayachoti, (13, February, 2018), (last visited 03/03/2021).

Suggested Articles on Bail:

  1. Bail Conditions
  2. Law Of Bail In India
  3. Types of Bail under CrPC
  4. Indian System of Bail - Anti Poor
  5. Bail And The Laws Relating To It
  6. Decoding the concept of Transit Bail
  7. All about Anticipatory Bail Law in India
  8. Explained: Bail After Conviction Section 389 CrPc
  9. Types of Bail In India And Conditions For Grant For Bail

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