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Article 21 of the Indian Constitution guarantees every individual the right to life and personal liberty. Unless proven guilty, a person is presumed innocent. As a result, an accused may not be detained unless a fair and just procedure is followed.Bail refers to the temporary release of an accused person awaiting trial. Bail is the judicial release of an accused charged with a specific offence by imposing certain restrictions on him and requiring him to remain within the jurisdiction of the court. So, if we look at the history of this concept. The term was derived from the old French word 'bailer,' which means to give or deliver.The concept of bail was developed in England. After being inspired by that India, introduced this concept. Since the 1948 UN Declaration of Human Rights, the concept of bail has been incorporated into the scope of human rights. In its 41st report, the Law Commission made recommendations to Parliament, which were examined and incorporated into the Criminal Procedure Code in 1973.

Legal implication

Bailable offence “a type of offence in which the accused is granted bail. This term has been defined in section 2(a) of the code” and Non Bailable offence“it is the type of offence in which accused is not entitled to get bail”. So, in the case of a bailable offence, the court is required to grant bail to the accused, whereas in the case of a non-bailable offence, the court has the discretion to grant bail to the accused or not.

Types of BAIL under CrPC

  • Non-bailable offence

When a person accused or suspected of committing a non-bailable offence is arrested, detained, appears, or is brought before a court (other than the High Court or a court of session), he may be released on bail; however, such person shall not be released if there appear reasonable grounds to believe that he has committed an offence punishable with death or life imprisonment.

The above section primarily addresses the bail of an accused person who has committed a non-bailable offence. This section also contains other mandatory provisions for example, 437(2) provides that if there is no sufficient ground for believing that the accused is guilty of a non-bailable offence but there is sufficient ground for further investigation, he can be released on bail and guidelines for granting bail nature and seriousness of the offence, reasonable apprehension of witness being tempered etc.

  • Anticipatory bail

Ordinarily, bail is granted after the arrest, but anticipatory bail is granted prior to the arrest. Anticipatory bail is defined in Section 438 of the CrPC, which states that when the court believes that the accused is falsely involved in the case and that arrest would jeopardise his honour and dignity, the court may grant anticipatory or pre-arrest bail to the accused under certain conditions.There is no provision for anticipatory bail, but the common limit applies throughout the trial or proceedings. After nearly 33 years, anticipatory bail has returned to Uttar Pradesh. During the 1976 emergency, the provision was repealed. In Samunder Singh vs. State of Rajasthan (1987), it was determined that all circumstances relating to dowry death were ineligible for anticipatory bail.

  • Special bail

The high court or court of session can order that anyone accused of an offence who is in custody be released on bail. If the offence is of the type described in 437, (3). It has the authority to order that any condition imposed by a magistrate when releasing someone on bail be set aside or modified.

  • S.436(a)

This section was added in 2005 as a result of a legislative amendment. It addresses the maximum period of detention for a prisoner awaiting trial. According to the section, if a person has been detained for nearly one-half of the maximum period of imprisonment specified for the offence for which he is being tried, the Court may release him on a personal bond with or without guarantee. This imprisonment must occur during the investigation, inquiry, or trial of the case, not during the execution of the sentence after conviction.After hearing the Public Prosecutor, the Court may also order imprisonment for a period longer than one-half of the stated period or release on bail in lieu of the personal bond. Even if release is not permitted, a person cannot be detained by a court order after the maximum length of imprisonment provided for the offence during investigation, inquiry, or trial. It does not apply to those charged with crimes punishable by death.

  • Interim bail

The Hon'ble Supreme Court established the concept of interim bail in 2009, stating that interim bail be granted pending disposition of bail application because arrest and detention of a person may result in irreparable loss. Rukmani Mahato vs. Jharkhand State (2017), The Supreme Court was made aware of the abuse of interim bail in this case. The apex court had expressed extreme displeasure with granting regular bail based on the superior court's pre-arrest/interim bail.


It is critical to first doubt and then demonstrate, but the presumption of innocence is also required. The provision for granting bail was introduced with this concept. It has been demonstrated as a solution to save the innocent man from spending time in jail prior to his trial and also allows him to increase his case preparation while allowing the lawyer to create a good understanding of the case. Sections 436,437, 438, and 439 of the Code contain the fundamental law governing bail.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 short-term basis but must appear in court whenever the court requires. The bail procedure takes place while the accused person's trial is still pending. Typically, a person seeks this option in order to be released from police custody. These provisions are foreseen in the code and provide a summary of the bail provisions. Bail is a legally binding process.

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