Bail denotes the provisional release of an accused in a criminal matter in which
the court is yet to announce a judgment. The expression 'bail' means a security
deposited to appear before the court for release. Originally, the word is
derived from an old French verb bailer which means to give or to deliver.
A ball is granted to an accused after presenting a bail bond to the court.
The primary objective of arrest is to ensure that the accused in a criminal case
appears before the court for the conveyance of justice. However, if the person's
presence can be guaranteed for the court trial without putting the person in a
jail, it would unfair and unjust to violate a person's liberty. Thus, bail can
be granted as a conditional liberty to the accused.
Bail is a kind of security which is given by the accused to the court that he
will attend the proceedings against the accusations made upon him and include
personal bond and bail bond.
Bail is a mechanism used to ensure that the accused is present before the court.
- The two authorities that can grant bail are police and courts.
- The basic and fundamental object of bail is to ensure the attendance of
accused at the trial before court.
The purpose of bail is to ensure the appearance of accused before the court
whenever required but in certain cases, granting bail is not required.
The basic rules of grant or denial of bail may simply be summarized as:
- There are only two kinds of offences bailable and non bailable offences
- In case of bailable offences section 436 CRPC it is the right of accused to
demand and be granted bail.
- The certain basic criteria while exercising his judicial discretion for
grant or denial of bail in case of non bailable offences has been laid down in section
437 CrPc in the cases related to non-bailable offences. Some of these criteria
include the nature of offence, past criminal records and probability of guilt.
- Section 438 CRPC deals with anticipatory bail in cases where there is an
apprehension to arrest.
There are other factors also which are to be kept in mind by the hon'ble court
before granting of bail like the possibility of threatening of witness,
possibility of evidence being tampered etc.
In Free Legal Aid Committee, Jamshedpur vs. State of Bihar,
the Supreme Court
ruled that in a session�s case if the magistrate has granted bail, the accused
need not seek bail from the court of sessions.
There rose an interesting question in Haji Mohamed Wasim v. State of U.P. before
the Allahabad High Court questioning the validity of bail granted by police
officers. In the instant case, the accused on bail which was granted by police
preferred to not appear before the court. Hence here the trial court issued a
non-bailable warrant which was then challenged by the accused under section 482.
It was hence ruled by the court that he has to take fresh bail from trial court.
Bail By Police
The Police Officer power, to release a person on bail who has been accused of an
offence and is in his custody, is categorised under the two heads:
The Power to grant bail by police has been conferred upon them by the virtue of
the following sections:
- When without any warrant the arrest is made and;
- When with the issuance of warrant the arrest is made
- Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of
- The powers of police to grant bail under head are controlled by
directions endorsed under Section 71 of the Code. It is under Section 81 of
the Code however, which empowers the police officer to grant bail when the
person arrested or produced before him has been accused of the commission of
offence even when no direction to such effect has been given in the warrant. In
case of non- bailable offence the endorsement on the warrant has to be strictly
followed. Endorsement on warrant however should be by name.
Types Of Bail In India
Depending upon the sage of the criminal matter, there are commonly three types
of bail in India:
Regular bail- A regular bail is generally granted to a person who has been
arrested or is in police custody. A bail application can be filed for the
regular bail under section 437 and 439 of CRPC.
This type of bail is granted for a short period of time and it is
granted before the hearing for the grant of regular bail or anticipatory bail.
Anticipatory bail- Anticipatory bail is granted under section 438 of CRPC either
by session court or High Court. An application for the grant of anticipatory
bail can be filed by the person who discerns that he may be arrested by the
police for a non- bailable offence.
The release of a person from legal custody, by undertaking that he shall appear
at the time and place designated and submit himself to the jurisdiction and
judgement of the court.
In the 1973 case Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy
Choudhry, the Calcutta High Court explained the principle behind giving bail:
The law of bails has to dovetail two conflicting demands, namely, on one hand,
the requirements of the society for being shielded from the hazards of being
exposed to the misadventures of a person alleged to have committed a crime; and
on the other, the fundamental canon of criminal jurisprudence viz. the
presumption of innocence of an accused till he is found guilty.
As opposed to ordinary bail, which is granted to a person who is under arrest,
in anticipatory bail, a person is directed to be released on bail even before
S. 438 of the Code of Criminal Procedure, 1973, lays down the law on
anticipatory bail. Sub-section (1) of the provision reads: "When any person has
reason to believe that he may be arrested on an accusation of having committed a
non-bailable offence, he may apply to the High Court or the Court of Session for
a direction under this section; and that Court may, if it thinks fit, direct
that in the event of such arrest, he shall be released on bail." The provision
empowers only the Sessions Court and High Court to grant anticipatory bail.
Conditions while granting anticipatory bail
While granting anticipatory bail, the Sessions Court or High Court can impose
the conditions laid down in sub-section.
S. 438(2) "When the High Court or the Court of Session makes a direction under
sub-section, it may include such conditions in such directions in the light of
the facts of the particular case, as it may think fit, including:
- a condition that the person shall make himself available for interrogation
by a police officer as and when required;
- a condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the Court or to any
- a condition that the person shall not leave India without the previous
permission of the Court;
- such other condition as may be imposed under sub-section (3) of section
437, as if the bail were granted under that section.
In medieval England, the sheriffs initially had the sovereign power to discharge
or hold suspected criminals. Some sheriffs would abuse the bail for their own
benefit. The Statute of Westminster (1275) constrained the caution of sheriffs
as for the bail. In spite of the fact that sheriffs despite everything had the
power to fix the measure of bail required, the resolution specifies which
violations are bailable and which are most certainly not.
In the mid seventeenth century, King Charles requested aristocrats to give him
advances. The individuals who declined were detained. Five of the detainees
recorded a habeas corpus request contending that they ought not be held
uncertainly without preliminary or bail. In the Petition of Right (1628)
Parliament contended that the King had spurned Magna Carta by detaining
individuals without worthwhile motivation.
The Habeas Corpus Act 1679 states:
A Magistrate will release detainees from
their Imprisonment taking their Recognizance, with at least one Surety or
Sureties, in any Sum as indicated by the Magistrate's watchfulness, except if it
will give the idea that the Party is carried out for such Matter or offenses for
which by law the Prisoner isn't bailable.
The English Bill of Rights (1689)
states that "over the top bail hath been expected of people perpetrated in
criminal cases, to escape the advantage of the laws made for the freedom of the
subjects. Exorbitant bail should not to be required." This was an antecedent of
the Eighth Amendment to the US Constitution.
The Bail Act 1976 was authorized with the points of making more conditions by
which respondents could be denied bail and furthermore rethinking the parameters
of satisfying bail. The enactment sketched out that courts were obliged to offer
bail to litigants except if a particular exemption was met. The first of two
realized special cases was that the respondent would not eagerly give up and
mess with case evidence; the second was that inadequate case proof had been
gathered to permit a litigant to be conceded bail.
The demonstration likewise
invalidated the recognizance framework, evacuating the prerequisite of paying a
particular measure of cash and rather capturing litigants for neglecting to give
up. Numerous historians have watched a predicament in which the 1976 Bail Act
conceded more noteworthy capacity to the courts in taking care of guardianship
yet in addition pushed them to not place respondents in care superfluously.
Legitimate reporter said that the demonstration neglected to cause all inclusive
lawful advancement, rather just permitting respondents to be given lawful guide
after they have been criticized. Chime accepts that this, among other minor
defects, imperfect the enactment, however it was regardless a springboard for
other functional applications.
As a fractional alteration to the 1976 Bail Act, the Criminal Justice Act 2003
specifies that bail must be denied to respondents who test positive for Class A
medications illustrated in the Misuse of Drugs Act 1971 and decline to be
evaluated or decline to take an interest in suggested treatment.
Forms in English Law
In England and Wales there are three types of bail that can be given:
- Police bail. A suspect is released without being charged but must return to the
police station at a stated time.
- Police to court. After being charged, a suspect is given bail but must attend
their first court hearing at the date and Court stated.
- Court bail. After a court hearing, a suspect is granted bail pending further
investigation or while the case continues.
There are some conditions put under section 437 of the Cr.P.C. wherein you can
ask for bail even if you committed non-bailable offense. In non-bailable cases,
bail is not the right but the discretion of the judge if regards the case as fit
for the grant of bail, it regards imposition of certain conditions as necessary
in the circumstances. Section S. 437 (3) elaborates the conditions set by the
law to get bail in non-bailable offenses.
The sub-section says that when a person accused or suspected of the commission
of an offense punishable with imprisonment which may extend to seven years or
more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the
Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to
commit, any such offense, is released on bail under sub-section (1). However,
for that the Court has power to impose any condition which it considers
Some conditions that the court may place while granting bail are as follows:
Conditions For Grant of Bail In Bailable Offences
- In order to ensure that such person shall attend in accordance with
the conditions of the bond executed under this Chapter, or
- In order to ensure that such person shall not commit an offence
similar to the offence of which he is accused or of the commission of
which he is suspected, or
- Otherwise in the interests of Justice.
Section 436 of Code of Criminal Procedure, 1973, lays down that a person accused
of bailable offence under IPC can be granted bail.
Conditions for bail in bailable offence are:
Conditions For Grant of Bail In Non-Bailable Offences
- There are sufficient reasons to believe that the accused has not
committed the offence.
- There is sufficient reason to conduct further enquiry in the
- The person is not accused of any offence punishable with death,
life imprisonment or imprisonment up to 10 years.
Section 437 of Code of Criminal Procedure,1973 lays down that the accused does
not have the right to apply for bail in non-bailable offences. It is discretion
of the court to grant bail in case of non-bailable offences.
Conditions for bail in non- bailable offence are:
Cancellation of Bail
- If the accused is a woman or a child, bail can be granted in
- If there is lack of evidence then bail in non-Bailable offences can be
- If there is delay in lodging FIR by the complainant, bail
may be granted.
- If the accused is gravely sick.
Court has the power to cancel the bail even at a later stage. This power is laid
upon the court under section 437(5) and 439(2) of the CrPC. The court can cancel
the bail granted by it and give directions to the police officer to arrest the
person and keep in police custody.
The Criminal Procedure Code, 1973 or Cr.P.C. talks in details about the bail
process and how it is obtained. However, it does not define bail. To get a
glimpse of the law, we need to go deeper to section 2(a) Cr.P.C. wherein it says
that bailable offense means an offense which is shown as bailable in the First
Schedule or which is made bailable by any other law for the time being enforce,
and non-bailable offense means any other offense.
Thus, section 2(a) Cr.P.C. talks about schedule which refers to all the offenses
under the Indian Penal Code and puts them into bailable and on bailable
categories which have been determined according to the nature of the crime. For
instance, all serious offenses like offenses punishable with imprisonment for
three years or more have seen considered as non bailable offenses, all other
offenses have been kept bailable offenses.
Later part of the Cr.P.C. talks about the process of bail under sections 436 to
450 wherein it has the provisions for the grant of bail and bonds in criminal
cases and also talks about the amount of security that is to be paid by the
accused to secure his release has not been mentioned in the Cr.P.C. However,
still a lot of discretionary power has been vested into the court to put a
monetary cap on the bond.
Landmark Case Laws
Aslam Babalal Desai V. State Of Maharashtra
In general, grounds for bail cancellation are interference or attempt to
interfere with the due course of administration of Justice, or evasion or
attempt to evade the course of justice or abuse of the liberty granted to him.
When the accused is granted bail under Section 167(2) for the prosecution being
at default for not completing the investigation within 60 days after the defect
being cured by chargesheet being filed, the bail may be deemed to be cancelled
on the ground that reasonable grounds do exist for the accused committing a
non-bailable offence. It is necessary for him to be arrested and taken into
custody. Strong grounds are necessary to cancel the bail and are to be made out
in the charge-sheet.
Deepak Kumar Sah V. The State Of Bihar
The petitioner was in jail for 9 months. The complainant had became pregnant
after having consensual physical relations with him. Hence, the petitioner is
liable to maintain the lady and at the time of delivery needed to be with her.
Hence, Patna High Court granted bail to him but only on the condition that he
had to furnish a bail bond of Rs. 10,000/- with two sureties of the like amount
each to the satisfaction of the Learned Additional Chief Judicial Magistrate,
Nityanand Rai V. State Of Bihar
The Bihar High Court has held for the bail to be cancelled, the grounds must be
those which arise after the bail is granted. The circumstances of the ground
needs to mandatory refer the the conduct of the accused while he is on bail.
Ankit Sharma V. State Of N.C.T Of Delhi And Anr
In this case, the Delhi High Court has distinguished between the two aspects of
bail- cancellation of bail and rejection of bail. The Court has held that the
grounds of both i.e., cancellation and rejection of bail are two different
things. The circumstances of both are quite different. Hence, the Court's
approach has to be distinct while dealing with the two cases. While dealing with
the hearing of bail application, the focus of the Court is on the violation of
conditions of bail. On the other hand, while dealing with cancellation of bail,
the Court also focuses on whether actual violation has taken place or not.
Gurbaksh Singh Sibbia V. State Of Punjab
The Apex Court has held that for granting anticipatory bail, the authorities are
at a discretion to do so. This power to grant anticipatory bail has to
be exercised objectively and open to correction by the higher courts. The power
conferred under Section 438 is an extraordinary one. The power to grant
anticipatory bail should be exercised with due care and circumspection.
The Court consequently held that
"The question as regards the interpretation of Section 438 Cr. P.C. did not at
all arise in that case, and that the said case was mainly concerned with Rule
184 of the Defence and Internal Security of India Rules, 1971, and whether S.
438 applied in such a situation."
Suresh Chand V. State Of Rajasthan
The Court held that after the first bail application was rejected under Section
438 CrPC by the Delhi High Court, the second such application is not
maintainable. The power to grant anticipatory bail does not flow from Article 21
of the Constitution of India. It is merely conferred by the statute. The Court
further observed that the Law Commission's intention was to prevent the
provisions of anticipatory bail from being abused at the instance of
unscrupulous petitioners and this extraordinary remedy has to be restored to
only in exceptional cases.
K.L. Verma V. State And Another
The Court made observations on the duration of granting anticipatory bail. It
" Till the bail application is disposed of one way or the other the court may
allow the accused to remain on anticipatory bail. To put it
differently, anticipatory bail may be granted for a duration which may extend to
the date on which the bail application is disposed of or even a few days
thereafter to enable the accused persons to move the higher court, if they so
Rasiklal V. Kishore Khanchand Wadhwani
The Court held that in case of bailable offences, the arrested person's right to
claim bail is absolute and indefeasible. If the bail papers in name of the
accused person are prepared, the police official or Court is bound to release
him from their custody or detention. The only choice available to them is
demanding security in surety and if the accused is willing to abide by
reasonable conditions which may be imposed on him. It held that:
Order of granting bail is judicial act and not ministerial act and thus reasons
must form the basis for any order on bail application.
Balchand Jain V. State Of Madhya Pradesh
The Court, in this case, decided upon the object of section 438. It held that
the underlying object of section 438 is that the moment a person is arrested, if
he has already obtained an order from the Sessions Judge or the High Court, he
would be released immediately without having to undergo the rigorous of jail
even for a few days which would necessarily be taken up if he has to apply
for bail after arrest.
Salauddin Abdulsamad Shaikh V. The State Of Maharashtra
The Court held that anticipatory bail is granted in anticipation of arrest in
non-bailable cases, but that does not mean that the regular court, which is to
try the offender, is sought to be by-passed and that is the reason why the High
Court very rightly fixed the outer date for the continuance of the bail and on
the date of its expiry directed the petitioner to move the regular Court for
bail. That is the correct procedure to follow because it must be realized that
when the Court of Session or the High Court is granting anticipatory bail, it is
granted at a stage when the investigation is incomplete and, therefore, it is
not informed about the nature of evidence against the alleged offender.
Santosh Kumar Mandal V. State
The Court reiterated on bail under POCSO Act. It held that the offence which is
punishable under Section 12 of the Prevention of Children from Sexual offences
Act is a non-bailable offence. Thus, it the accused cannot claim bail under that
section exercising his right to claim bail.
Ashim Kumar Vs. State Of West Bengal
Supreme Court laid down that the mere fact that where the concerned person was
actually in jail custody at the time when an order of detention was passed
against him and was not likely to be released for a fair length of time, it
would be possible to contend that there could be no satisfaction on the part of
the detaining authority as to the likelihood of such a person indulging in
It can be concluded that the concept of bail is that it acts as security lodged
by the accused person on the basis of which he can be released on a temporary
basis but needs to appear in court whenever required by the court. The process
of bail takes place while the trial of the accused person is still pending.
Generally, a person seeks this option in order to get himself released from
police custody. These provisions envisaged in the code gives the brief regarding
the provisions of the bail. The process of bail is a legitimate process.
- Gurmeet Singh, Advocate, For M/S Gurmeet Singh & Associates,
Advocates and Legal Consultants,
Website: www.gurmeetsinghandassociates.com /.in, Email:
[email protected], Ph No:+91 8750002000
- Ms. Vagisha Gupta,
- Adv. Vidushi Jain,
- Adv. Hritwik ,
- Adv. Aman Sharma,
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