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Any criminal justice system that guarantees the accused the right to a fair trial must include bail as a vital component. To protect the fundamental right to liberty, the practise of issuing bail developed. No one’s personal freedom may be taken away from them unless it is required by a reasonable, just, and fair procedure. Bail is a tool that guarantees the accused’s freedom while denying them any unwarranted advantages. It has been noted, nonetheless, that the practise of giving bail is highly erratic and ambiguous. Taking into account things like the cost of the bail bond, the criteria for granting bail, and the bail bond’s terms. The supreme court has noted in a number of decisions that each case needs to be reviewed for its unique facts and circumstances before granting bail.

The balance between individual rights and the interests of society must be taken into account when deciding whether to grant or deny bail. The Code of Criminal Procedure (CrPC), 1973 does not include a definition for the term “bail” per se. However, its origins can be found in the old French verb “baillier,” which meant “to deliver.” Bail, also known as Zamanat or Muchalka, is frequently mentioned in Mughal history in great detail. Chapter III of the CrPrc, Sections 436 to 450, contains bail-related provisions in Indian law. Bailable offences are presumably less serious, hence the punishment is less harsh and the accused has a legal right to request release on bond. Therefore, the court and police must release the accused at any point while they are detained or arrested in cases where bail is allowed.

Non-bailable does not necessarily mean that no bail can be issued. Simply put, it means that the accused is not permitted to assert it as a matter of right at the time of their arrest or detention. However, they are permitted to address the court while they are being tried. The decision to grant bail to the accused in cases when bail is not allowed rests with the court. And the same needs to be decided carefully, not arbitrarily. 

Types of bail:

  • Interim Bail

Since "interim" literally means "for an interval," it is clear that in the instance of interim bail, the court has granted bail for a predetermined amount of time. The break could last fifteen days or even a whole month. At these intervals, the accused is freed from custody; nevertheless, after the given time period has passed, the accused is once more imprisoned. In order to get interim bail, an accused person might submit an application to the relevant court.

  • Regular bail

Regular bail refers to bail in non-bailable instances. The rules for standard bail in criminal cases are outlined in Section 437 of the Criminal Procedure Code. It states that if a person is accused of committing a non-bailable offence and is detained by a police officer without a warrant, they may be released on bail at the discretion of the court when they are brought before a court other than the high court or the court of sessions, with the exception of the following situations:

  • when there are good reasons to think that he committed an offence for which the maximum penalty is life in prison or death.
  • When such an offence is cognizable in nature and he has previously been found guilty of an offence that was punishable by death, life in prison, or a sentence of seven years or more in jail. Additionally, he will not be granted bail if he has received two or more convictions for a cognizable offence for which bail is not permitted.
  • Mandatory bail 

Mandatory bail is another name for default bail. The provisions pertaining to default bail are stated under Section 167, subsection 2, where it is stated that if the investigation officer does not file the charge sheet within a specific prescribed time, which is 90 days for cases involving an offence punishable by death, life in prison, or a term of imprisonment of at least 10 years, then default bail will be granted. And 60 days for any other offence than the earlier ones. If the defendant agrees to post bail, he will then be freed. A system or process that an investigating officer follows in order to gather evidence can be referred to as an investigation.

  • Bail anticipatory

In its most basic form, anticipatory bail is a form of protection against future arrest in which a judge releases a defendant on bond when they have good cause to believe they will be arrested for an offence that is not subject to bail. In accordance with Section 438 of the Criminal Procedure Code, a person who reasonably believes they will soon be arrested for a crime for which there is no possibility of a bail bond may be granted anticipatory bail by the high court or sessions court. Preliminary bail is only granted to higher criminal courts, according to the current clause, which also states that the applicant may only submit bail requests to the high court and sessions court.

An Overview of The Basics of Granting Bail:

In the criminal court system of India, bail has a lengthy history. After being arrested or having a reasonable suspicion of being arrested, a person acquires the right to be released on bail. The Indian criminal justice system's fundamental principle states that punishment should not start before conviction. As a result, a person's right to liberty cannot be violated unless it is required by law. In Maneka Gandhi v. Union of India, the Apex Court made the observation that robbing someone of their liberty without due process must be viewed as a form of punishment.

The assumption of innocence is another fundamental value that should go without saying because it is rarely violated. A person is therefore presumed innocent unless and unless proven guilty beyond a reasonable doubt, which is one of the fundamental principles of bail and criminal law.

It has been established that the notion of bail develops to ensure the accused person's personal liberty, which is protected by Article 21 of the constitution. Even a foreigner must receive equal treatment when receiving bail in accordance with the equality principle. This prohibition applies to the final judgement and order, not to any interim orders made during the course of the action (bail is an interim order). Therefore, Section 362 does not apply to bail.

The idea of res-judicata is not applicable to bail, as has been made quite apparent, yet courts are nonetheless obligated by the doctrine of judicial discipline. The Supreme Court ruled in Kalyan Chandra Sarkar v. Rajesh Ranjan that a substantial change in the facts and circumstances of the case justifies filing a new application for the granting of bail. Therefore, there shouldn't be any hesitation in considering a second application. The court further stated that there was no prohibition against submitting a new bail application following the filing of the charge-sheet, given that the previous bail applications had been rejected based on other evidence, such as the First Information Report. Therefore, the bail application made after the charge sheet was filed should be regarded as a change of a substantial nature.

In LT. Col. Prasad Shrikant Purohit v. State of Maharashtra, the court stated that an accused person has the right to submit additional bail applications, and that the court considering those applications must take into account the grounds and justifications for the earlier bail application's denial.


Bail law is governed by a set of fundamental concepts. The underlying principle of the bail system is to defend the individual's right to life and liberty. A number of principles are the foundation of bail law. However, it would be a terrific idea to safeguard the accused's freedom and liberty if there could be some clause that allows for personal representation of the accused before the court in the event that bail is rejected. Delays in granting bail to the accused, particularly if they are innocent, damage not only the interests of the person but also the welfare and general well-being of society.

The fact that bail is granted fairly late in the proceedings is another grey area in the application of bail. This has to do with the overabundance of cases and the overtaxed legal system. Even in cases where there is no possibility of a bail hearing, the court should issue release if there is no prima facie evidence against the accused at the outset of the case. It is important to note that justice delayed is justice denied in this situation. Therefore, it is against their constitutional and human rights to hold people awaiting trial in jail for longer than is necessary.

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