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Key Takeaways

  • Bail is a legal term that refers to the process of obtaining a person's release from prison while awaiting trial or an appeal by depositing a bond to secure his timely surrender to legal authority.
  • “The grant or refusal to grant bail rests within the discretion of the Court,” the Hon'ble Supreme Court said in Sanjay Chandra vs CBI in 2011.
  • The Supreme Court of India established the legal notion of ‘Bail is a rule, imprisonment is an exception' in the landmark case of State of Rajasthan vs. Balchand alias Baliya (AIR 1977 2447).
  • In this case, the legal concept was established by Justice V. Krishna Aiyer, who based it on the fundamental rights given by India's constitution.


“The issue of bail is one of liberty, justice, public safety, and fiscal burden, all of which urge that a well-developed bail jurisprudence is essential to a socially sensitive judicial process.”

— In the Gudikanti Narasimhulu case, Justice V.R. Krishna Iyer (1977)

Every Indian citizen has a fundamental right to freedom protected by Article 21 of the Indian Constitution, which states, "No person shall be deprived of his life or personal liberty except in accordance with legal procedure." Any individual who breaks the law of the land is subject to legal consequences, and his freedom may be restricted as a result, depending on the severity of the offence committed.

Every accused who has been falsely accused of a non-bailable offence is not only entitled to a good defence, but also to be released on bail by the Court after considering various factors such as the nature or seriousness of the offence, the character of the evidence, circumstances unique to the accused, reasonable apprehension that the witnesses have been tampered with, and so on.

The Court has a serious duty to determine bail applications as soon as possible by issuing a reasoned order based on the applicant's good faith in light of the facts and circumstances.

What is bail

The concept of bail is a fundamental aspect of Indian criminal law, and it is a widely accepted notion in all judicial systems around the world. Bail is a legal term that refers to the process of obtaining a person's release from prison while awaiting trial or an appeal by depositing a bond to secure his timely surrender to legal authority. The court with jurisdiction over the prisoner determines the monetary value of the security, commonly known as bail, or, more precisely, the bail bond.

The security can be cash, property title papers, or a bond from a wealthy individual or a professional bondsman or bonding organisation. If a person who has been released on bail fails to surrender at the prescribed time, the security is forfeited. In the case of people who have been arrested for a crime, courts have more leeway in granting or denying bail.

Bail is used to "secure the release of a person from legal custody by undertaking that he or she will appear at the time and place specified and submit to the jurisdiction and judgement of the court."

Although the terms bailable offence and non-bailable offence are defined as follows in Section 2(a) Cr.P.C.: " Bailable offence means an offence that is shown as bailable in the First Schedule or that is made bailable by any other law for the time being enforced, and non-bailable offence means any other offence." In addition, Sections 436 to 450 outline the procedures for granting bail and bonds in criminal proceedings. The amount of security that the accused must pay to secure his release is not specified in the Cr.P.C. As a result, the court has the authority to set a monetary limit on the bond.

“The grant or refusal to grant bail rests within the discretion of the Court,” the Hon'ble Supreme Court said in Sanjay Chandra vs CBI in 2011. The facts and circumstances of each case play a key role in determining whether a grant or denial is made. At the same time, the right to bail should not be denied only because of community emotions against the accused. In a criminal case, the primary purposes of bail are to release the accused from custody, relieve the State of the burden of keeping him pending trial, and to keep the accused constructively in the custody of the Court, whether before or after conviction, to ensure that he will submit to the Court's jurisdiction and be present whenever his presence is required.

In the case of Aasu vs. the State of Rajasthan, the Supreme Court has ruled that bail applications should be resolved within one week.

Types of Bail

Bails in India are governed by the Criminal Procedure Code and can be broadly categorised into four categories: -

1. Regular Bail: - A bail issued to a person who has been arrested and/or has been held in police or judicial custody.

2. Anticipatory Bail: This type of bail is issued prior to the arrest and is usually issued by the Sessions Court or the High Court. When someone is apprehended in the commission of a crime, it is granted.

3. Interim Bail: - Is a bail issued before a hearing for the purpose of obtaining regular or anticipatory bail for a shorter period of time.

4. Default bail is given under Section 436A of the Code of Criminal Procedure when the accused is on trial, in judicial custody, and has already received half of the maximum penalty for the crime.

Bail for Bailable Offences

Section 436 of the Criminal Procedure Code states that if the alleged offence is bailable, the accused is entitled to bail as a matter of right, either before the police station or, if the case has been transferred to Magistrates Court, before the Magistrates Court. Bail is a right, not a favour, in bailable offences. There is no room for discretion in providing bail in such cases. Bond can be requested as a matter of right, and the Police Officer and the Court are both required by law to release a person on a bond if he is willing to give bail. In the right circumstances, such a person can be freed on his own bond.

Rasiklal vs Kishore Khanchand Wadhwani, “As soon as it seems that the accused person is willing to give bail, the police officer or the court before whom he offers bail is required to release him on such terms as to bail as may appear to the officer or the court to be reasonable,” the Hon'ble Supreme Court declared in a case. Instead of obtaining bail from such a person, the officer or the court could free him by requiring him to execute a bond as provided in the Section.”

However, if the claimed offences are both Bailable and Non-Bailable, the offence will be tried as a Non Bailable offence, and the accused will not be able to secure bail on the basis of a Bailable offence.

Bail u/s 436-A

There have been cases where convicts on trial have been held in jail for longer than the maximum sentence allowed for the alleged offence. A new Section 436A is added to the Code to provide that an undertrial prisoner who has been detained for a period extending to one half of the maximum period of imprisonment provided for the alleged offence should be released on his personal bond, with or without sureties, if he has been detained for a period extending to one half of the maximum period of imprisonment provided for the alleged offence. It is also stipulated that the defendant be held no longer than the maximum period of imprisonment for which he can be convicted for the accused crime.

Bail for non-bailable offences

The provisions of Section 437 authorise two authorities to evaluate the issue of bail: (1) a court and (2) a police officer-in-charge who has arrested or detained a person accused or suspected of committing a non-bailable offence without a warrant. Although this section addresses the power or discretion of a court and a police officer in charge of a police station to grant bail in non-bailable offences, it also establishes certain limitations on a police officer's power to grant bail and certain rights of an accused person to obtain bail when he is being tried by a Magistrate.

The trial court and the Magistrate before whom the offender is shown by the police or the accused surrenders or appears have the ability to grant or refuse bail to a person accused of, or suspected of, committing any non-bailable offence under Section 437 of the Criminal Procedure Code.

Only one type of police officer, the officer-in-charge of the police station, has the authority to release a person accused of a non-bailable offence on bail under Section 437 subsection (1). Because the power to grant bail is discretionary and not mandatory, it must be used with extreme prudence due to the risk and stakes involved.

Before exercising his authority, a station officer should ensure that the accused's release on bail will not jeopardise the prosecution's ability to prove his guilt. If an officer in charge accepts an accused to bail, he must record the reasons or special reasons in the case diary and keep the bail bonds until they are discharged, either by the accused's appearance in court or by a competent court's decision.

The Legislature has divided non-bailable offences into two categories for the purpose of determining bail: (1) those that are punishable by death or life imprisonment, and (2) those that are not. A station officer cannot enlarge a person on bail for an offence punishable by death or life imprisonment if there are reasonable reasons to believe he has committed such an offence. A police officer cannot consider the accused's age, sex, illness, or disability while deciding whether or not to issue bail.

These issues may only be considered by a court. Only when there are no reasonable grounds for believing that the accused has committed a nonbailable criminal or when the nonbailable offence is not punishable by death or life imprisonment may an officer-in-charge of the police station grant bail.

Anticipatory bail (Section 438 Cr. P.C)

A flurry of anticipatory bail petitions has been filed in the post-emergency year. Many of the petitioners were powerful people who had wielded immense authority during the emergency and were fearful of being arrested on charges of corruption, misuse or abuse of official positions, and so on in the post-emergency era. Because the people involved in the anticipatory bail processes were wealthy and powerful, they made every attempt to take advantage of the law and its apparatus. The courts were obligated to interpret the law discreetly, precisely, and circumspectly during this procedure.

As a result, the legislation relating to anticipatory bail has gained momentum in its development and sophistication. Article 21 of the Indian Constitution guarantees all citizens the right to life and personal liberty, and it is regarded as one of the most valuable rights. Section 438 of the Criminal Procedure Code of 1973, which governs Indian criminal law, provides for anticipatory bail.

In its 41st Report, dated September 24, 1969, the Law Commission of India emphasised the importance of including a provision in the Code of Criminal Procedure that allows the High Court and the Court of Sessions to give "anticipatory bail." This clause allows a person to apply for bail in advance of being arrested on suspicion of committing a non-bailable offence. The primary goal of including this provision was to ensure that no one was imprisoned until and unless they were found guilty.

Who may be eligible for anticipatory bail

When a person has reason to believe that he will be arrested on false or trumped-up charges, or because of enmity with someone, or because he fears that a false case will be built up against him, he has the right to petition the court of Session or the High Court under Section 438 of the Code of Criminal Procedure for bail in the event of his arrest, and the court may if the circumstances warrant grant bail.

Anticipatory bail shall not be granted to an accused who has been deemed an absconder/proclaimed offender under Section 82 of the Criminal Procedure Code and has not cooperated with the investigation. “When a person against whom a warrant has been issued and is absconding or concealing himself in order to avoid execution of the warrant and declared as a proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail,” the Hon'ble Apex Court held in State of M.P. vs. Pradeep Sharma.

Conditions for obtaining anticipatory bail

In light of the facts of the case, the High Court or the court of the session may include the following conditions:

1. a requirement that the person make oneself available for questioning by a police officer as and when necessary;

2. a condition that the individual not, directly or indirectly, make any enticement, threat, or promise to any person familiar with the facts of the case in order to persuade him not to reveal those facts to the court or to any police officer;

3. a requirement that the person does not leave India without first obtaining permission from the court

In the case of Siddharam Satlingappa Mhetre, the Supreme Court decided that certain restrictions set by the High Court were unnecessary and in violation of the principles of anticipatory bail. As long as the bail is not revoked, the accused is free. On an application filed by the complainant or the prosecution, the High Court or Court of Session may order that anyone who has been released on bail is detained and held in jail.

“The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and thus means release from police custody, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest,” the Hon'ble Supreme Court held in Gurbaksh Singh Sibia v. the State of Punjab.

When a Higher Court grants an interim anticipatory bail and the case is still pending, no regular bail will be granted:

In Rukmani Mahato vs. the State of Jharkhand, the Hon'ble Supreme Court has advised Trial Courts not to issue regular bail to an accused if he or she has already received interim anticipatory relief from a superior Court and the case is still pending before the Higher Court.

“Once a regular bail is granted by a subordinate Court on the strength of the interim/pre-arrest bail granted by the Superior Court, even if the Superior Court dismisses the plea of anticipatory bail upon further consideration of the matter, the regular bail granted by the subordinate Court will continue to hold the field, rendering the ultimate rejection of the pre-arrest bail null and void,” the Court concluded.

Cancellation of Bail

The Code of Criminal Procedure clearly states that bail can be revoked and the accused sent back into custody. Section 437(5) provides that any court that has released a person on bail under subsection (1) or (2) of Section 437 may if it deems it necessary, order that the person is arrested and held in jail. Similarly, Section 439 gives the High Court and the Court of Session the authority to revoke bail. The Code of Criminal Procedure, Section 439(2), clearly states that bail can be revoked and the offender taken back into custody.

The power to cancel bail can be used in one of two ways:

1. on the merits of a case, primarily on the basis of the order granting bail being perverse, or passed without due consideration, or in violation of any substantive or procedural law; and

2. on the basis of misuse of liberty after the grant of bail or other supervening circumstances.

Bail in the first category of cases can only be revoked by higher courts, whereas bail in the second category can be revoked by the same court that granted bail. The judicial pronouncements on the issue of bail cancellation on the merits and on the basis of the future conduct of the accused already on bail or on the basis of supervening circumstances appear to be riddled with ambiguity. The principles of bail cancellation based on subsequent conduct or the involvement of new circumstances have occasionally been incorrectly applied to cases when bail cancellation is sought on the merits.

It is consequently critical to comprehend the aforementioned separate principles of bail cancellation that apply in these two domains.

As previously indicated, the legal provisions pertaining to bail cancellation under the Cr.P.C. are primarily found in S.437(5) and 439(2)

A court other than a High Court or a Sessions Court has the authority to cancel bail under Section 437(5). In other words, it gives the Magistrate Court the authority of cancellation. It specifies that a court other than the High Court or the Sessions Court may order that a person freed on bail by it be arrested and committed to custody if it deems it appropriate. This provision has been construed by the courts to mean that any court that has released an accused on bail has the authority to order the arrest and detention of that individual if the circumstances justify it after the release on bail.

Normally, the court would be able to use this power only if the individual released on bail has abused the liberty granted by the court, or if there has been a significant change in the investigation or retrieval of compelling evidence implicating the accused in a horrific crime. However, bail should not be revoked arbitrarily without assessing whether any new circumstances have made it impossible for the accused to keep his liberty by benefiting from the concession of release throughout the trial.

Bail Following a conviction: (Section 389 of the Cr.P.C)

Suspension of sentence awaiting appeal; bail for the appellant:

1. In the absence of an appeal by a condemned person, the Appellate Court may order that the execution of the sentence or order appealed against be deferred and, if he is incarcerated, that he be released on bail or on his own bond, for reasons to be recorded in writing by the Appellate Court. Provided, however, that before releasing a convicted person on bail or on his own bond for an offence punishable by death, life imprisonment, or imprisonment for a term of not less than ten years, the Appellate Court shall give the Public Prosecutor an opportunity to show cause in writing against such release: Furthermore, in circumstances when a guilty person is freed on bond, the Public Prosecutor has the option of filing an application to have the bail revoked.

2. The High Court may utilise the power given on an Appellate Court by this section in the case of an appeal by a condemned person to a Court subordinate to it.

3. When a convicted person informs the court that he intends to appeal, the court may:

● sentence such person to imprisonment for a term not exceeding three years while on bail, or

● order that the convicted person be released on bail unless the offence for which he has been convicted is a bailable one and he is on bail.

4. When the appellant is sentenced to a term of imprisonment or life in prison, the time he is freed will be deducted from the duration of his sentence.

After submitting a criminal appeal, a guilty individual can receive a Bail from the appellate court under Section 389 (1) and (2) of the Cr.P.C. Section 389 (3) deals with a circumstance in which the trial court can give bail to a convicted defendant in order for him to file an appeal. Section 389(3) must be considered because we're talking about the trial court's ability to postpone the sentence.

Difference in operations of Sub-section (1) and (3) of Sec.389 Cr.P.C

1. When an appeal is pending, subsection (1) comes into effect. When the criminal indicates his desire to file an appeal, however, Subsection (3) comes into effect.
2. Subsection (1) mentions "suspension" first, followed by "release on bail" or "own bond." However, Subsection (3) states that “bail release” comes first, followed by “suspension” as the “automatic” result.
3. Although Subsection (1) does not require the accused to be on bail, Subsection (3) can only be applied if the accused is on bail on the day of the decision.
4. The criminal has the option of being released on “bail” or “his own bond” under Subsection (1), but the Trial Court does not have the power to release the convict on “his own bond” under Subsection (3). However, if the accused is poor, the trial court can release him on his own bond.
5. To summarise, suspension is cause and bail is effect under subsection (1), and bail is cause and suspension is effect under subsection (3).

Landmark Judgements

1. State of Uttar Pradesh vs. Chandra (1998 U.P. Cr.R. 263)– The Allahabad High Court specified the following criteria for granting bail on parity in this case:

That a Judge is not obligated to grant bail to an accused on the basis of parity, even if the order granting bail to an identically placed co-accused contains reasons if the order was issued in flagrant violation of well-established principle and fails to consider the relevant facts necessary for granting bail; that granting bail to an accused on the basis of parity may result in a failure of justice; that granting bail to an accused on the basis of parity may result in a failure of justice.

2. State of Uttar Pradesh v. Nanha (1993 CriLJ 938)– This case went into great detail about the issue of parity bail, concluding that "parity cannot be the sole basis for granting bail even at the stage of second, third, or subsequent bail applications when the bail application of the co-accused whose bail application had been previously rejected is allowed and the co-accused is released on bail."

That the Court must be satisfied that there are sufficient grounds for releasing the applicant on bail, based on additional papers submitted, future developments in the inquiry or otherwise, and other factors.

If an assessment of a case reveals that the situation of the applicant before the Court is identically similar in facts and circumstances to that of the accused who has been released on bail, the desire for consistency will necessitate that such an accused be freed on bail as well.

3. In Atul Tripathi Vs. State of Uttar Pradesh, a two-judge Supreme Court panel debated the scope and application of Section 389 of the Criminal Procedure Code and issued the following Guidelines on the suspension of sentence during the pendency of a criminal appeal.

a. If the appeal court is inclined to consider the release of a defendant sentenced to death or life imprisonment for a period of ten years or more, the public prosecutor must first be given an opportunity to demonstrate cause in writing against such release.
b. If the State is provided such an opportunity, it is required to file any objections in writing.
c. If the public prosecutor fails to file the objections in writing, the appellate court must state in its order that no objection was filed notwithstanding the court's invitation.
d. Before passing an order for release, the court shall judiciously consider all relevant factors, whether or not they are specified in the objections, such as the gravity of the offence, the nature of the crime, the convict's age, criminal antecedents, the impact on public confidence in the court, and so on.

4. In Suddu Kumar vs. State of Bihar, the Patna High Court held that if an appellant is convicted of a capital crime and sentenced to life in prison, a prayer for suspension of sentence and release on bail is to be considered favourably, and he is ordinarily allowed bail if he has served seven years of incarceration in connection with such case before conviction and after conviction.

Stages of Filing a Bail Application

Bail can be requested at several phases of a criminal case -

a. First, it can be granted after an arrest;
b. Second, it can be granted to a person who is an undertrial prisoner for committing a non-bailable offence; and
c. Third, a bail application can be filed by a person who has been convicted by a trial court and has filed an appeal against that conviction.

Clause (a) addresses the circumstance in which a person has been arrested in connection with a bailable or non-bailable offence. To comply with Section 57, this type of bail can be granted by a court before which the accused has been produced for the first time following arrest.

Clause (b) deals specifically with the trial stage of a criminal matter, implying that the bail application is pending before the trial court, which has the authority to hear the matter in accordance with Schedule I.

The issue of bail is listed before the trial court at this point in the criminal case. As a result, the court hearing the bail application has a better understanding of the accused's role in the crime. The police report was filed under Section 173 of the code by the investigative authority.

If the trial court denies the bail application, the decision may be justified. However, if the court denies bail at this time, it must also complete the trial as soon as possible, as required by Section 437(6).

The purpose of Section 437(6) is to protect the accused's fundamental rights and promote a timely trial. This necessitates the use of the natural justice concept.

Similarly, in Common Cause v. Union of India, the court declared that if the court determines that it is not appropriate to release the under-trial prisoner at this point of the criminal procedure, the court must provide the minimum orders necessary to complete the trial as quickly as feasible.

The ‘Maximum term for which an undertrial prisoner can be kept' is addressed in Section 436A. In this situation, the accused has already spent more than half of the sentence in jail during the investigation, inquiry, or trial. Unless the crime does not carry a death penalty, he must be released on bond. A personal bond or sureties could be used to release the accused.

Clause (c) specifies when the issue of bail arises after a conviction and the trial court's judgement, i.e. the conviction order, has been challenged in an appeal or revision, as applicable. The amount of bail is determined by the severity of the sentence. Short-term sentences (up to 3 years in jail), mid-term sentences (more than 3 years but less than 7 years in prison), and long-term sentences (more than 7 years in jail) are the three types of sentences (more than 7 years).

In the event of short-term penalties, the appellate court may allow the prisoner to appeal, release him on bail, and order that the trial court's judgement, which is the execution of the conviction sentence, be deferred. If the court finds it necessary to refuse bail, it may do so in writing. If the offender has served half of his term as an under-trial prisoner, the court should reconsider granting bail.


“Because every criminal offence is a crime against the state, society has a vital interest in whether bail is granted or denied. The order granting or rejecting bail must strike the proper balance between conflicting objectives, namely, the sanctity of individual liberty and the common good.”
- S.S. Mhetre vs. State of Maharashtra, Justice Dalveer Bhandari (2010)

In our constitutional system, personal liberty is of paramount importance. Article 21 has been acknowledged. Personal liberty restrictions must be based on the most serious factors pertinent to the society's welfare goals, as defined by the Constitution.

Despite the fact that the law of the land and the Hon'ble Higher Courts have attempted to interfere in various situations and have also laid down specific guidelines to be followed, nothing has been done about it. There is also a pressing need for a comprehensive review of the bail system, taking into account the socio-economic circumstances of the bulk of our population.

While granting bail the court must also look at the socio-economic circumstances of the accused and must also have a compassionate approach towards them. Proper scrutiny may be done to discover whether the accused has his roots in the community which would deter him from fleeing from the court.

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