Introduction

 The concept of Bail is provided by Chapter XXXIII (Thirty-Three) of the Code of Criminal
Procedure, 1973 (CrPC) titled ‘Provisions as to Bail and Bonds’. It consists of Sections 436-
450.
o Bail means short-term release of an accused person awaiting trial.
 Bail is the judicial release of an accused charged with a certain offence by imposing some
restrictions on him and compelling him to remain within the jurisdiction of court.
o The concept of bail has come under the extent of human rights since the United Nations
Declaration of Human Rights of 1948.

Legal Position of Bail

The term ‘Bail’ has not been defined under CrPC. Only the term ‘Bailable Offence’
and ‘Non-Bailable Offence’ has been defined under Section 2(a) of the Code.

Bailable Offences
 According to Section 2(a) of CrPC bailable offence means an offence that is classified as
bailable in the First Schedule of the Code, or which is classified as bailable under any other
law.
 Under Section 436 of CrPC a person accused of a bailable offence at any time while under
arrest without a warrant and at any stage of the proceedings has the right to be released
on bail.
 An accused can claim bail as a matter of right if he is accused of committing a bailable
offence.
 The Police Officer or any other authority has no right to reject the bail if the accused is
ready to the furnish bail.

Non-Bailable Offences
 Any offence not mentioned as bailable under the First Schedule of CrPC or any other
law is considered as non-bailable offence.
 A person accused of a non-bailable offence cannot claim bail as a right. Section 437 of
CrPC provides for when bail may be taken in case of non-bailable offence.
 A person accused of non-bailable offence can be granted bail provided the accused does not fall
under the following grounds:
o There are reasonable grounds to believe that he committed an offence punishable with
death penalty or life imprisonment.
o That the accused has committed a cognizable offence and he had been previously
convicted of an offence punishable with death, imprisonment of seven years or more.
o That the accused had been previously convicted on two or more occasions of commission
of a cognizable offence punishable with imprisonment for three years or more but not less
than seven years.
o There are exceptional cases in which law gives special consideration in favour of persons
i.e., where the accused is a minor, a woman, a sick person etc. by virtue of Section 437(1) of
CrPC.

Who can grant Bail?

 In case of a Bailable offence - Officer in charge of Police Station/ Court as per Section 436(1)
of CrPC.
 In case of Non Bailable offence – Court (of any level) as per Section 437(1) of CrPC.
 Anticipatory Bail can be granted by Session Court or High Court according to Section
438(1) of CrPC.

Different types of Bail

 Regular Bail: The court orders the release of a person who is under arrest, from Police custody
after paying the amount as bail money. An accused can apply for regular bail under Section 437
and 439 of Crpc.
 Interim Bail: This is a direct order by the court to provide temporary and short-term bail to the
accused until his regular or anticipatory bail application is pending before the court.
 Anticipatory Bail: A person under apprehension of arrest for a non-bailable offence may
apply for anticipatory bail to the High Court or the Court of Session under Section 438 of
CrPC.

Conditions while Granting Bail

 According to Section 437(3), while granting bail to a person accused or suspected of the
commission of an offence punishable with imprisonment which may extend to seven
years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian
Penal Code,1860 (IPC), the court shall impose following conditions:
o Such person shall attend in accordance with the conditions of the bond executed under this
Chapter.
o Such person shall not commit an offence similar to the offence of which he is accused, or
suspected, of the commission of which he is suspected.
o Such 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 or tamper with the evidence.

Special Powers of High Court or Court of Session

Regarding Bail
Section 439 of CrPC accords certain special powers to both High Court and
Sessions Court with respect to Bail. They are as follows:
 Court may direct that any person accused of an offence and in custody be released on bail and
may impose any condition which it considers necessary.
 Court may direct that any condition imposed by a Magistrate when releasing any person on bail
be set aside or modified.

Landmark Case Laws

 Moti Ram & Ors vs State Of M.P (1978):
o The right to seek release on bail under Section 436(1) cannot be undermined indirectly by
imposing an unreasonably high bond amount or bail bond requirement on the individual seeking
release.
 K. S. Layak v. State of A.P (1981):
o It was held by the Andhra Pradesh HC that while granting bail on conditions, any condition which
is in derogation of an accused’s fundamental rights cannot be imposed.
 Gurcharan Singh & Ors v. State (Delhi Administration) (1978): The Supreme Court
(SC) opined that:
o There are no provisions in the CrPC that describes time duration for disposal of grant of pre-
arrest anticipatory bail.
o The concerned court has the discretion to impose conditions for grant of anticipatory bail
including a limited period of protection etc., subject to considering any special circumstances
required.
 Gurbaksh Singh Sibbia v. The state of Punjab (1980):
o It was held by 5 judge constitution bench of the SC that Section 438(1) of CrPC is to be
interpreted in the light of Article 21 of the Constitution of India.

Cancellation of Bail
 The settled doctrine by the Supreme Court of India is that ‘Bail is the rule and jail is an
exception’ but if cogent grounds are established, the courts are enshrined with powers to
cancel the bail of a person.
 The Lower Courts, including those of Magistrates, have the authority to cancel bail
under Section 437(5) of CrPC, whereas the High Court and Court of Session have the
authority under Section 439(2) of the Code.
 The court needs to consider following circumstances before cancellation of bail:
o The nature of the accusation (gravity and severity of offence).
o The severity of punishment.
o Taking into consideration the position or status of the accused, i.e., whether the accused can
exercise influence on the victim and the witnesses or not.
o Capacity of the accused to obstruct the due course of justice.
o Possibility of repetition of offence when on bail.
o The prima facie satisfaction of the court in support of the charge.
o The different and distinct facts of each case and nature of substantive and corroborative
evidence.
o Likelihood of accused to approach the victims/witnesses.
o Likelihood of accused absconding from proceedings.
o Possibility of accused to tamper with evidence.

Conclusion
The right to life and personal liberty is a fundamental right granted by the
Constitution of India. The Indian judicial and legal systems have time and again
given priority to grant of bail when warranted. As nothing can be understood in
absolute sense, in terms of bail as well there is need to implement checks and
balances so that the provisions of law are not misused.

Introduction
Article 21 of the Constitution of India guarantees the protection of life and
personal liberty to all persons. It guarantees the fundamental right to live
with human dignity and personal liberty, which in turn gives us the right to
ask for bail when arrested by any law enforcement authority.

The provision of anticipatory bail under Section 438 was introduced in the
Code of Criminal Procedure in 1973 (hereinafter referred to as CrPC or
Criminal Procedure Code). It is based on the recommendation of the Law
Commission of India, which in its 41st report, recommended the
incorporation of a provision of anticipatory bail. The report stated that “The
necessity for granting anticipatory bail arises mainly because sometimes
influential persons try to implicate their rivals in false cases for the purpose
of disgracing them or for other purposes by getting them detained in jail.
Apart from false cases, where there are reasonable grounds for holding that
a person accused of an offence is not likely to abscond, or otherwise misuse
his liberty while on bail, there seems no justification to require him to first to
submit to custody, remain in prison for some days and then apply for bail.”

The ‘Bail’ provision, especially anticipatory bail, is based on the legal principle
of “presumption of innocence” i.e. every person accused of any crime is
considered innocent until proven guilty. This is a fundamental principle
mentioned in the Universal Declaration of Human Rights under Article 11.

Meaning of bail
‘Bail’ connotes the process of procuring the release of an accused charged
with certain offences by ensuring his future attendance in the court for trial
and compelling him to remain within the jurisdiction of the court.

Definition of bail, as per the Black’s Law Dictionary is that bail is – “the
security required by a court for the release of a prisoner who must appear at
a future time.” The objective of arrest is to deliver justice by presenting the
accused before the Court. However, if the same objective can be achieved
without making any arrest then there is no need to violate his liberty. That’s
why bail can be granted to the accused person for conditional release.

Legal position of bail

The term ‘Bail’ has not been defined under the Criminal Procedure Code,
1973. Only the term ‘Bailable Offence’ and ‘Non-Bailable Offence’ has been
defined under Section 2(a) of Cr. PC. The provisions relating to bail and bail
bonds are mentioned under Section 436-450 of the Criminal Procedure
Code.

Categories of bail
For the purpose of bail, offences are classified into bailable and non-bailable
offences which are discussed below :

Bailable offences
According to Section 2(a) of CrPC bailable offence means an offence that is
classified as bailable in the First Schedule of the Code, or which is classified
as bailable under any other law. An accused can claim bail as a matter of
right if he is accused of committing a bailable offence. The police officer or
any other authority has no right to reject the bail if the accused is ready to
furnish bail. Under Section 436 of CrPC 1973, a person accused of a bailable
offence at any time while under arrest without a warrant and at any stage of
the proceedings has the right to be released on bail.

Non-bailable offences
A non-bailable offence is defined as any offence which is not a bailable
offence. A person accused of a non-bailable offence cannot claim bail as a
right. A person accused of non-bailable offences can be granted bail provided
the accused does not qualify the following conditions:

 There are reasonable grounds to believe that he has committed an

offence punishable with death penalty or life imprisonment.
 That the accused has committed a cognizable offence and he had
been previously convicted of an offence punishable with death,
imprisonment for life or imprisonment of seven years or more or if
the accused been convicted on two or more instances of a
cognizable and non-bailable offence.
There are exceptional cases in which law gives special consideration in favour
of cases where the accused is a minor, a woman, a sick person etc. [Section
437(1) CrPC].

Kalyan Chandra Sarkar vs Rajesh Ranjan: The apex

court observed that the detention of the accused in non-
bailable offences could not be questioned as being
violative of Article 21 of the Constitution.

Different types of bail

Regular bail
Via this, the court orders the release of a person who is under arrest, from
police custody after paying the amount as bail money. An accused can apply
for regular bail under Section 437 and 439 of CrPC.

Interim bail
This is a direct order by the court to provide temporary and short term bail to
the accused until his regular or anticipatory bail application is pending before
the court. The Supreme Court noticed the misuse of interim bail by the
accused in Rukmani Mahato vs. the State of Jharkhand.

Anticipatory bail
This is a direct order of Sessions or High Court to provide pre-arrest bail to
an accused of a crime. When the person has an apprehension of being
arrested, the person can apply for anticipatory bail. Sometimes, an
application for anticipatory bail may go against the person, as it might alert
an investigation agency regarding the involvement of that person in a crime.

Important factors to be considered while

granting anticipatory bail in India
Based on Section 438(1) of CrPC, the Supreme Court has enumerated a
detailed and exhaustive list of considerations while deciding anticipatory bail.
They are as follows:-

 Gravity of crime and role of accused must be understood before the

arrest.
 Previous record of accused, any imprisonment on conviction in
respect of non bailable offence, should be checked.
 Possibility that applicant will flee from justice.
 Chances of repetition of similar or other offences.
 Intention behind accusation is whether to injure or humiliate the
applicant by arresting him or her.
 Consider the exact role of the accused.
 Reasonable apprehension of tampering with evidence, witnesses and
threatening the complainant.

Standard conditions while granting

anticipatory bail
 Accused should present himself / herself for interrogation by the
investigation office as and when asked to appear.
 Accused should not directly or indirectly try to induce, threaten, or
promise to any person related to the case who knows the facts of
 the case, so that he can be dissuaded from disclosing the fact to the
court or investigation officer.
 Accused should not leave the country with prior permission of the
court.
 Any other condition which the honourable court deems fit.

Cancellation of bail
Under Section 437(5) of CrPC, the court which has granted bail can cancel it,
if found necessary under certain conditions. Per Section 439(2), the Sessions
Court, High Court, or Supreme Court can, suo moto, cancel the bail granted
to the accused and transfer the accused to custody. Per Section 389(2), an
appellate court can also cancel the bail of the accused and order the accused
to be arrested and sent to custody.

Latest case laws

1. Re: Digendra Sarkar – Under Section 438 of the CrPC, the application for
anticipatory bail applied even before the First Information Report is
registered. So, First Information Report cannot be a condition precedent to
applying for anticipatory bail.

2. Suresh Vasudeva vs. State – Section 438(1) applies only to non-bailable

offences.

3. Sushila Agarwal vs. State – Supreme Court held that anticipatory bail
should not be for a fixed period, but it is open to the court to limit the tenure
of anticipatory bail if any special condition necessitates the same.

4. Gurbaksha Singh Sibbia and others vs.the State of Punjab – the Supreme
Court opined :

 There are no provisions in the CrPC regarding time boundness of

granting pre – arrest anticipatory bail.
 The concerned court has the discretion to impose conditions for
grant of anticipatory bail including a limited period of protection
etc., subject to considering any special circumstances required.

Anticipatory bail as a fundamental right

Under the Constitution of India, every person has a fundamental right to life
and personal liberty. Article 21 is enshrined in our Constitution. The objective
of this article is not to deprive any person of his life or personal liberty except
as per the procedure established by law. As a person can not prepare their
case for trial from behind the bars, so the provision of bail in law is provided,
to give a fair chance to fight their case with all possible measures. Apart from
that since an accused is considered innocent until proven guilty, incarceration
in any form brings disrepute to the person and restricts him from going
about his daily affairs. Hence to avoid such hardships, a person is provided
with the remedy to apply for anticipatory bail.

Clause 4 was added to Section 438, through the Criminal Amendment Bill,
2018. The legislature inserted four clauses under Section 438. According to
the amendment, anticipatory bail cannot be granted to a person accused of
the offence of committing rape on a woman aged under 16years, under 12
years, gang rape on a woman aged under 16 years of age and gang rape of a
woman under 12 years of age, punishable under Section 376(3), 376
AB, 376 DA and 376 DB respectively under the Indian Penal Code
(Punishment of rape) 1860.

Rape is a heinous crime and there should be strict provisions under law to
punish the convict. However, there is a difference between an accused and
being proclaimed a convict. There are high chances of an accused being
acquitted after a trial and hence denying the right of bail entirely goes
against the spirit of justice. Rape is a serious crime but nowadays people go
to any level to defame a person to take revenge on them, therefore the
instances of filing false cases of rape are also increasing. Hence, this
amendment unjustly restricts the right to get anticipatory bail.

Conclusion
The objective behind enacting Section 438 is to safeguard the liberty of a
person. The need for anticipatory bail arises mainly when any person has
reason to believe that he may be arrested on an accusation of having
committed a non-bailable offence. Anticipatory bail is concerned with the
liberty of a person and presumes their innocence. It was held in the case
of Gurbaksh Singh Sibbia vs. the State of Punjab by a five-judge Supreme
Court bench led by then Chief Justice Y V Chandrachud that Section 438
(1) is to be interpreted in the light of Article 21 of the Constitution. While
Courts have time and again emphasised the need to uphold the liberty of
individuals and protect them from arbitrary arrests, one needs to remember
that anticipatory bails are not a matter of right like other types of bail.

Stages or Types of Bail

1. Anticipatory Bail
Anticipatory bail is filed before the arrest is made. In
other terms, it is also known as pre-arrest bail. The
accused apprehending arrest can approach the High
Court of the concerned state for anticipatory bail
application under section 438 of CrPC. Anticipatory bail
is frequently in the news, and politicians, prominent
personalities, journalists, etc., often use this.

2. Bail on Arrest

This is filed after the arrest of the accused person.

Under Section 437 of CrPC, the arrested person can
approach the court for bail.

3. Bail for Convict

This is filed post-conviction by the court, and an appeal

lies against the same. When the accused has been
convicted by the court and has preferred an appeal, the
accused can apply to the appellant court for bail.

Related Law Note: Criminal Appeal and Its Kind Under

CrPC

4. Default Bail

When the charge-sheet is not filed in the court within

the prescribed time period or in other words, the
investigation remained incomplete within the stipulated
time period; the accused is entitled to default bail.
 5. Interim Bail

Lal Kamlendra Pratap Singh vs State of U.P. and Ors.

(2009): Interim bail is nowhere defined in CrPC. The
concept of interim bail was started by the Hon’ble
Supreme Court in 2009, stating that interim bail be
granted pending disposal of bail application because
arrest and detention of a person may cause irreparable
loss.

Rukmani Mahato vs the State of Jharkhand (2017): Here,

the misuse of interim bail came to the Supreme Court’s
notice. The apex court had expressed extreme
displeasure over granting regular bail based on the pre-
arrest/interim bail of the superior court. The apex court
held:

Even if the superior court dismisses the anticipatory bail

plea after further examination, the normal bail granted
by the subordinate court will continue to hold the field,
rendering the superior court’s final denial of the pre-
arrest bail useless.

Advantages of Bail
Some of the major benefits of granting bail are:

 One can be well-braced for trial.

 One’s reputation can be preserved.
 One can attend his work or job.
 Family bonding and responsibilities can be maintained.
 Freedom from police torture.
 Freedom from the boredom of hardened criminals.
 Freedom from low hygienic conditions of the jail.
 One can meet his advocate anytime.

Disadvantages of Bail
The primary concerns for granting bail are:

 The burden of expenses lies on the state.

 Damage is caused to the reputation of the accused.
 The accused family finds it difficult to adjust to
society because people have inferior views against the
same.