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  • Code of Criminal Procedure, 1973 lays down the provisions for procedure and powers of courts to grant bail.
  • Section 436 to 450 of the CrPC deal with the provisions of granting bail.
  • Bail is granted based on whether the offence is bailable or non-bailable and it can be granted post and pre-arrest.
  • One of the most important doctrines dealing with bail is “Bail is rule, jail is the exception”.
  • The concept of bail plays an important role in safeguarding the right envisaged under Article 21 of the Constitution.
  • Hussainara Khatoon v. State of Bihar is one of the most important cases that deal with the rights of undertrial prisoners and bail granted to them.

“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”. – Justice V.R. Krishna Iyer


It is important for the interest of society that the culprit is tried and punished for his acts in order to give justice to the victim but also it should be remembered that everyone is innocent until proven guilty. The concept of bail enshrined in the Indian criminal law system is the safeguard that upholds and protects this principle and provides the opportunity for every accused to be tried in a free and fair manner.

India is a democratic country and the basic feature of a democracy is that every individual has the right to life and personal liberty and the State strives to protect this right. The concept of bail and personal liberty go hand in hand and therefore every individual, including the accused, has the right to seek bail to get themselves released from custody unless they are proven guilty. Bail is an integral part of the criminal system in India and it ensures liberty to the accused without giving them unjustified benefits.

The goal behind arresting and detaining a person behind the jail is to make sure his presence before the court during the trial and as and when required by the court. It helps the courts to keep a check on the accused and make sure that while the trial is pending, there is no such action from the accused that might compromise and sabotage the proceedings. The bail mechanism is very complex because mid-trial, it is not sure whether the person is innocent and guilty and it has been noticed that many times innocent people also languish in jail because they are not granted bail. Justice V.R. Krishna Iyer in the landmark judgment of State of Rajasthan vs. Balchand alias Baliya laid down the Doctrine of “Bail is rule, jail is the exception” to safeguard the right enshrined under Article 21 and urged the courts to grant bail unless extremely necessary.


The word bail is not defined in the Indian laws however it is derived from the French word ‘baillier’, meaning ‘to deliver’. The use of bails can be traced back to 399 BC when Plato created a bail bond to free Socrates. The Mughal history also used terms like Zamanat or Muchalka which referred to bail and during the medieval period, and British circuit courts created a system of bail. It can also be seen in Kautilya’sArthashastra where he mentioned that one should avoid pre-trial detention and therefore the concept of bail was prevalent in ancient India also.

In the present legal system, the provisions for bail are laid down under the Criminal Procedure Code, 1973 under Sections 436 to 450. Since the term bail is not defined anywhere, Section 2 (a) of the Code lays down the definitions for bailable and non-bailable offences. Section 2 (a) reads as, “‘bailable offence’ means an offence which is shown as bailable in the First Schedule, or which is made available by any other law for the time being in force; ‘non-bailable offence’ means any other offence”.

Bailable offences are less heinous and carry less severe punishment and the accused can claim bail as a matter of right and it becomes mandatory for the police and the court to release the accused from custody. Non-bailable offences do not imply that the bail will not be granted but it cannot be claimed as a right. It is the discretion of the court to grant bail as non-bailable offences are more serious and carry severe punishment.


  • Bail in bailable offence

Section 436 of CrPC lays down conditions under which the bail can be granted for bailable offences under the IPC. This Section makes it mandatory for the police or the court to grant bail and they cannot exercise their jurisdiction. The bail can be granted by the police who made the arrest or the court before which the accused is produced, and any accused person willing to provide bail must be released.

In Rasiklal v. Kishore s/o Khanchand Wadhwani, the Supreme Court held that the right to bail for a bailable offence is absolute and the courts and police cannot exercise their discretion under Sec. 436.

In Deepak Khosla v State of NCT of Delhi &Ors, the Delhi High Court held that the grant of bail for bailable offences is governed under Section 436 and it is compulsory to grant bail if the accused is willing to furnish bail.

This Section also states that if an individual within one week is unable to furnish the bail, he will be considered indignant and will be eligible to be discharged on the execution of a bond without sureties.

Even though bail is a right under this Section, sub-Section (2) provides for conditions under which the bail can be cancelled and it says that if a person fails to comply with the conditions as specified in the bail bond, he may be re-arrested and his bail will be cancelled.

  • Bail in non-bailable offence

Section 437 of the Code lays down the conditions for granting bail in non-bailable offences. However, in this case, it is the discretion of the court to grant bail and the accused cannot claim it as a right. According to this Section, if a person is arrested without a warrant and presented before the court, any court other than High Court and Sessions Court may grant him bail but if it has reasonable grounds to believe that the person is guilty of an offence punishable with death or life imprisonment, the court may not grant bail.

Further, the court may also grant bail if the accused is a woman or a child, or the evidence of the crime is not enough or if there is a need for further inquiry.

In the case of Prahlad Singh Bhati v. NCT, the Court held that it has to be kept in mind that the legislature sued the words “reasonable grounds for believing” and not “the evidence” and therefore while considering the bail, the court should look into if there are reasonable grounds that can prove the guilt and at this stage, it should not be expected that there is enough evidence to establish guilt.

  • Anticipatory Bail

The word anticipation means apprehension and therefore if the person apprehends arrest under a non-bailable offence, he can apply for anticipatory bail under Section 438 of the CrPC. One of the most important points to be noted is that this bail is given even before the actual arrest takes place and the applicant just apprehends that he might be arrested.

The term anticipatory bail is not defined under the Code but in the case ofBalchand Jain v. the State of M.P, the Supreme Court held that anticipatory bail means bail in the apprehension of the arrest. When a competent court grants “anticipatory bail”, it is meant that the person will be released immediately in the case of arrest.

In Adri Dharamdas v State of West Bengal, the Court held that the power to grant anticipatory bail is extraordinary and can be exercised only in exceptional cases where the Court believes that the applicant is falsely implicated and is entitled to bail.

  • Bail on default

Section 167(2) of the CrPC empowers the Magistrate to hold a person in custody if the investigation is not completed within 24 hours but it lays down the condition for which custody is authorized. According to this Section, if the investigation is not completed within the stipulated time, it becomes mandatory for the court to grant bail irrespective of the accusation on him and it becomes default bail.

If the person is arrested without a warrant and detained, he cannot be kept under police custody for more than 15 days and he should be shifted to judicial custody but no Magistrate can authorize the detention for more than 90 days where the investigation is related to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In case of investigation relating to any other offences, the detention cannot be more than 60 days.

In Sanjay Dutt v. State, Through CBI, the Court held that the right of the accused to be released on bail under Section 167(2) will not be available if the accused fails to file an application to avail the bail before the filing of charge-sheet. The Court mentioned that if the charge-sheet is filed after the time stipulated under the Section but before the application for bail is filed, then the right to bail will not be available.

  • Interim Bail

There are no express legal provisions for interim bail under the Code of Criminal Procedure. Section 439 of the Code gives the power to High Court and Sessions Court to grant bail for the accused in custody. Therefore,Sections 436, 437, and 439 deal with the bail granted in custody, i.e., post-arrest whereas Section 438 lays down provisions for granting bail before the arrest. Interim bail is granted by the court during the pendency of a plea of anticipatory bail before the court.

In Siddharam v State, the Court held that there are no express provisions of interim bail in Sections 437 or 439 and the concept of interim bail can be applied to post-arrest matters also.

In Sukhwant Singh v State, the Supreme Court filed the gap between Sections 437 and 439 and held the Court’s power to grant bail includes the power to grant interim bail, which means the Court while hearing a plea for regular bail, has the power to grant interim bail while the case for regular bail is pending.


Bail strives to safeguard the right to life and personal liberty and freedom of the accused but this freedom is not absolute and can be taken away on certain conditions. The court which has granted the bail is also competent to cancel the bail if the person does not comply with conditions laid down by the court.

Madras High Court in Public Prosecutor v George Williams stated that a bail granted to a person can be cancelled if the person out on bail hampers the investigation, tampers with the evidence, repeats the crime for which he was arrested, threatens the witness or the victim or flees to a foreign country to escape punishment.

The power to grant bail is only in the hands of the courts and the police cannot do so and the court which granted the bail alone has the power to cancel it. Whereas the High Court and Sessions Court have the power to cancel the bail granted by the lower court but the Sessions Court cannot cancel a bail granted by High Court.

In Dolat Ram v. State of Haryana, the Supreme Court held that once the bail is granted, it can only be cancelled based on cogent and overwhelming circumstances.


The case of Hussainara Khatoon v. State of Bihar is one of the most important cases where the Court recognized the right to life and personal liberty of undertrial prisoners and granted bail to them. In this case, almost 80% of prisoners in Bihar Jail had languished in jail for a period extending from a few months to 10 years and many had exceeded the period of imprisonment prescribed for the offences they were charged with. Justice Bhagwati found that these undertrial prisoners were stuck in jail not because they were guilty, but they were too poor to afford bail. He read into the right of speedy trial envisaged under Article 21 and ordered the release of prisoners who had exceeded the period of imprisonment for their offences.

In Mantoo Majumdar v. State of Bihar, the Supreme Court once again upheld the rights of undertrial prisoners and granted bail to petitioners on their bonds without sureties as they were languishing in jail for 6 years.


The Code of Criminal Procedure lays down the provisions for granting bail but the application of it is carried out by the courts. In some cases, it becomes the duty of the court to grant bail whereas in some it is at their discretion to grant bail. Over the years, the courts have laid down principles and guidelines for the speedy trial and disposal of cases of undertrial prisoners and have granted bail to many who had been languishing in jail for several years.

The Supreme Court and High Courts time and again have upheld the importance and value of Fundamental Rights enshrined in Article 21 of the Constitution and used bail as an instrument to protect this right. Taking note of the Doctrine of “Bail is rule, jail is the exception”, the courts have been trying to grant bail to the individuals who deserve it and prevent the infringement of their rights.

When the courts grant bail, they mention conditions on the bail bond that have to be followed by the person released on bail and keep a check on his behaviour after the release. The right of bail is not absolute and the competent court can cancel the bail if the person does not comply with the conditions of the bail bond or acts in a manner that hinders the process of justice.

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