Bail

Types of bail

Anticipatory
Regular bail
bail

bail as a matter Discretionary

of right bail

Section 436 Section 436A Section 437(2) Section 167 Section 437(1) Section 437 (6) Section 437(7) Section 439 Section 438
 REGULAR BAIL

BAIL AS A
DISCRETIONARY
MATTER OF
BAIL
RIGHT

SECTION 436 Section 436A SECTION 437(2) SECTION 167 SECTION 437(1) SECTION 437 (6) SECTION 437(7) SECTION 439 SECTION 438
 Types of
bail

Regular Anticipat
bail ory bail
bail as a
matter of
right
Discretio
nary bail BAIL AS A
MATTER OF
Section Section Section Section Section Section Section Section Section
436 436A 437(2) 167 437(1) 437 (6) 437(7) 439 438

RIGHT

SECTION
SECTION 167 Section 436 A SECTION 436
437(2)
 BAIL AS A
MATTER OF (a) the Magistrate may authorise the detention of the
RIGHT
accused person, otherwise than in the custody of the police,
SECTIO SECTION
beyond the period of fifteen days; if he is satisfied that
SECTION 436 Section 436A
N 167 437(2) adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody
under this paragraph for a total period exceeding,-

SECTION 167. PROCEDURE WHEN

INVESTIGATION CANNOT BE COMPLETED IN (i) ninety days, where the investigation relates to an offence
TWENTY FOUR HOURS. punishable with death, imprisonment for life or
(1) … imprisonment for a term of not less than ten years;

(2) The Magistrate to whom an accused person is

forwarded under this section may, whether he has or has (ii) sixty days, where the investigation relates to any other
not jurisdiction to try the case, from time to time, offence, and, on the expiry of the said period of ninety days,
authorise the detention of the accused in such custody as or sixty days, as the case may be, the accused person shall
such Magistrate thinks fit, for a term not exceeding be released on bail if he is prepared to and does furnish bail,
fifteen days in the whole; and if he has no jurisdiction to and every person released on bail under this sub- section
try the case or commit it for trial, and considers further shall be deemed to be so released under the provisions of
detention unnecessary, he may order the accused to be Chapter XXXIII for the purposes of that Chapter;
forwarded to a Magistrate having such jurisdiction:
Provided that-
 BAIL AS A
MATTER OF 437. WHEN BAIL MAY BE TAKEN IN CASE
RIGHT
OF NON- BAILABLE OFFENCE
SECTIO SECTION
SECTION 436 Section 436A
N 167 437(2)

(2) If it appears to such officer or Court at any

stage of the investigation, inquiry or trial, as the
case may be, that there are not reasonable grounds
for believing that the accused has committed a
No reasonable grounds for believing that the
accused has committed a non- bailable offence
non- bailable offence, but that there are sufficient
grounds for further inquiry into his guilt the
But that there are sufficient grounds for further accused shall, subject to the provisions of section
inquiry 446A and pending such inquiry, be released on
bail or at the discretion of such officer or Court,
Be released on bail or at the discretion of such
officer or court on the execution by him of a bond without
sureties for his appearance.
P1
436. IN WHAT CASES BAIL TO BE TAKEN.
BAIL AS A
MATTER OF
RIGHT (1) When any person other than a person accused of a non- bailable offence
is arrested or detained without warrant by an officer in charge of a police
SECTIO SECTION
SECTION 436 Section 436A
station, or appears or is brought before a Court, and is prepared at any time
N 167 437(2)
while in the custody of such officer or at any stage of the proceeding before
such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may,

instead of taking bail from such person, discharge him on his executing a
bond without sureties for his appearance as hereinafter provided:

Provided further that nothing in this section shall be deemed to

affect the provisions of sub- section (3) of section 116 or section 446A

(2) Notwithstanding anything contained in sub- section (1), where a person

has failed to comply with the conditions of the bail- bond as regards the
time and place of attendance, the Court may refuse to release him on bail,
when on a subsequent occasion in the same case he appears before the
Court or is brought in custody and any such refusal shall be without
prejudice to the powers of the Court to call upon any person bound by such
bond to pay the penalty thereof under section 446.
Slide 7

P1 Privin, 2/21/2020
 Ins. by Act 25 of 2005, s. 36 (w.e.f. 23-6-2006).
BAIL AS A
MATTER OF
RIGHT

SECTION Section 436A

SECTION 436
SECTION 167 437(2)

436A. Maximum period for which an undertrial prisoner can be detained.

Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not
being an offence for which the punishment of death has been specified as one of the punishments under that law)
undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that
offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the
continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the
personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for
more than the maximum period of imprisonment provided for the said offence under that law.

Explanation.—In computing the period of detention under this section for granting bail, the period of detention passed due
to delay in proceeding caused by the accused shall be excluded.
 DISCRETIONARY
BAIL

SECTION 437(1) SECTION 437 (6) SECTION 437(7) SECTION 439

 DISCRETIONARY (ii) such person shall not be so released if such offence is
BAIL
a cognizable offence and he had been previously
convicted of an offence punishable with death,
SECTION
SECTION 437 (6) SECTION 437(7) SECTION 439
imprisonment for life or imprisonment for seven years or
437(1)
more, or he had been previously convicted on two or
more occasions of a non- bailable and cognizable
offence:
Provided that the Court may direct that a
437. WHEN BAIL MAY BE TAKEN IN CASE OF NON-
person referred to in clause (i) or clause (ii) be released
BAILABLE OFFENCE.
on bail it such person is under the age of sixteen years or
is a woman or is sick or infirm:
(1) When any person accused of, or suspected of, the
commission of any non- bailable offence is arrested or Provided further that the Court may also direct
detained without warrant by an officer in charge of a police that a person referred to in clause (ii) be released on bail
station or appears or is brought before a Court other than the if it is satisfied that It is just and proper so to do for any
High Court or Court of Session, he may be released on bail, other special reason:
but- Provided also that the mere fact that an
accused person may be required for being identified by
(i) such person shall not be so released if there appear witnesses during investigation shall not be sufficient
reasonable grounds for believing that he has been guilty of ground for refusing to grant bail if he is otherwise
an offence punishable with death or imprisonment for life; entitled to be released on bail and gives an undertaking
that he shall comply with such directions as may be
given by the Court.
 DISCRETIONARY
BAIL

SECTION 437 SECTION

SECTION 437(1) SECTION 439
(6) 437(7)

437. WHEN BAIL MAY BE TAKEN IN CASE OF NON- BAILABLE OFFENCE.

(6) If, in any case triable by a Magistrate, the trial of a person (7) If, at any time after the conclusion of the trial
accused of any non- bailable offence is not concluded within a of a person accused of a non- bailable offence and
period of sixty days from the first date fixed for taking evidence before judgment is delivered, the Court is of
in the case, such person shall, if he is in custody during the opinion that there are reasonable grounds for
whole of the said period, be released on bail to the satisfaction believing that the accused is not guilty of any such
of the Magistrate, unless for reasons to be recorded in writing, offence, it shall release the accused, if he is in
the Magistrate otherwise directs. custody, on the execution by him of a bond
without sureties for his appearance to hear
judgment delivered.
 DISCRETIONARY
BAIL

SECTION 437 SECTION

SECTION 437(1) SECTION 439
(6) 437(7)

439. SPECIAL POWERS OF HIGH COURT OR COURT OF SESSION REGARDING BAIL.

(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the
nature specified in subsection (3) of section 437, may impose any condition which it considers necessary
for the purposes mentioned in that sub- section;
(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is
accused of an offence which is triable exclusively by the Court of Session or which, though not so triable,
is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor
unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this
Chapter be arrested and commit him to custody.
 DISCRETIONARY
BAIL

SECTION 437 SECTION

SECTION 437(1) SECTION 439 SECTION 438
(6) 437(7)
438. Direction for grant of bail to person apprehending arrest.—(1) 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.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such
conditions in such directions in the light of the facts of the particular case, as it may think fit, including—
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) 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
police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that
section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such
accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give
bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant
should be issued in the first instance against that person, he shall issue a bailable warrant in confirmity with the
direction of the Court under sub-section (1).

(3) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having
committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or
section 376DB of the Indian Penal Code (Criminal Law (Amendment) Act, 2018)
Sushila Aggarwal (2020) Case Judgment

There is nothing in CrPC that indicates the grant of anticipatory Bail should be time-bound.
However, under CrPC, it is discretionary power of the Court to decide on a case-to-case basis (depending
upon the stage at which the Bail application has moved or prevalence of any peculiar
circumstances necessitating to limit the tenure) and impose a time limit while granting pre-arrest Bail.

Also, this duration primarily does not end after first summoning by the Court and can continue till the end
of the trial period.
If any Court wants to limit the Bail, it can attach special features or circumstances warranting the same
The Court while granting anticipatory Bail, should examine the seriousness and gravity of the offence (like
nature of the crime, material placed on records, etc.) to impose any condition on the petitioner, if
necessary.
The police can reach the Court seeking permission for arrest in case of breach of such imposed
conditions.
“anticipatory bail” means “bail in anticipation of arrest”.

“anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of
arrest. It is submitted that when a competent court grants “anticipatory bail”, it makes an order that in the event of
arrest, a person shall be released on bail. It is submitted that there is no question of release on bail unless a person is
arrested and, therefore, it is only on arrest that the order granting “anticipatory bail” becomes operative.

Sushila Aggarwal vs State (Nct Of Delhi) on 29 January, 2020

In view of the concurring judgments of Justice M.R. Shah and of Justice S. Ravindra Bhat with Justice Arun
Mishra, Justice Indira Banerjee and Justice Vineet Saran agreeing with them, the following answers to the
reference are set out:
(1) Regarding Question No. 1, this court holds that the protection granted to a person under Section 438 Cr. PC should
not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.
Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there are specific facts or
features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature
of relief, or its being tied to an event) etc. (2) As regards the second question referred to this court, it is held that the
life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is
summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any
special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
1. This court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference,
hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr.
PC:

(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab 54, when a person
complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and
not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail
should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well
as his 1980 (2) SCC 565 side of the story. These are essential for the court which should consider his application, to
evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have
to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved
earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

(2) It may be advisable for the court, which is approached with an application under Section 438, depending on
the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while
granting limited interim anticipatory bail.
(3) Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time,
or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc.
While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence,
the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence
(including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts
would be justified – and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section
438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and
depending upon the materials produced by the state or the investigating agency. Such special or other restrictive
conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all
cases.

Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of
any case or cases; however, such limiting conditions may not be invariably imposed.

(4) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role
attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse
it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are
to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.
(5) Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the
charge sheet till end of trial.

(6) An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit
further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident,
for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future
incident that involves commission of an offence.

(7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or
investigating agency, to investigate into the charges against the person who seeks and is granted prearrest bail.

(8) The observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the
investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of
recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed
custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek
regular bail. Sibbia (supra) had observed that “if and when the occasion arises, it may be possible for the prosecution to
claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information
supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman
Upadhyaya.”
(9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for
a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non
cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome
of the investigation or trial, etc.

(10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according
to prevailing authorities.

(11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of
the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts
or crucial circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr55; Jai Prakash
Singh (supra) State through C.B.I. vs. Amarmani Tripathi 56 ). This does not amount to “cancellation” in terms of
Section 439 (2), Cr. PC.
(12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors57 (and other similar
judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby
overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra 58 and subsequent
decisions (including K.L. Verma v. State & Anr59; Sunita Devi v. State of Bihar & Anr 60; Adri Dharan Das v.
State of West Bengal61; Nirmal Jeet Kaur v. State of M.P. & Anr62; HDFC Bank Limited v. J.J. Mannan 63; Satpal
Singh v. (2011) 6 SCC 189 (2005) 8 SCC 21 2011 (1) SCC 694 (1996 (1) SCC 667) 1998 (9) SCC 348 2005 (1)
SCC 608 2005 (4) SCC 303 2004 (7) SCC 558 2010 (1) SCC 679 the State of Punjab64 and Naresh Kumar Yadav
v Ravindra Kumar65) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to
a period of time are hereby overruled.
only after a person, who is alleged to have committed a nonbailable offence, is arrested or detained without warrant or
appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the preconditions
of its application is that the person, who applies for relief under it, must be able to show that he has reason to believe
that “he may be arrested”, which plainly means that he is not yet arrested. The nexus which this distinction bears with
the grant or refusal of bail is that in cases falling under Section 437, there is some concrete data on the basis of which it
is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an
offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive
and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are
not reasonable grounds for so believing. The foundation of the belief spoken of in Section 437(1), by reason of which
the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the first
information report. In the majority of cases falling under Section 438, that data will be lacking for forming the requisite
belief. If at all the conditions mentioned in Section 437 are to be read into the provisions of Section 438, the
transplantation shall have to be done without amputation. That is to say, on the reasoning of the High Court, Section
438(1) shall have to be read as containing the clause that the applicant “shall not” be released on bail “if there appear
reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life”.
In this process one shall have overlooked that whereas, the power under Section 438(1) can be exercised if the High
Court or the Court of Session “thinks fit” to do so, Section 437(1) does not confer the power to grant bail in the same
wide terms The expression “if it thinks fit”, which occurs in Section 438(1) in relation to the power of the High Court
or the Court of Session, is conspicuously absent in Section 437(1). We see no valid reason for rewriting Section
438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of
Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that
anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the
punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such
cases too, though of course, the court is free to refuse anticipatory bail in any case if there is material before it
justifying such refusal.
Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation
of anticipatory Bail. They imply that a Court which has the
power to grant anticipatory Bail is also empowered to
cancel the Bail or recall the order related to Bail upon
appropriate consideration of facts.

A High Court or Court of Session may direct that any

person who has been released on Bail by it- be arrested,
and brought under custody after filing of an application by
the complainant or the prosecution.However, a Court
does not have the power to cancel the Bail granted by the
police officer.
Gudikanti Narasimhulu And Ors vs Public Prosecutor, High
Court of Andra Pradesh 1978 AIR 429 Krishnaiyer, V.R.

After all, personal liberty of an accused or convict is

fundamental, suffering lawful eclipse only in terms of
'procedure established by law'. The last four words of Art.
21 are the life of that human right.