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.

MEANING

The word bail has been coined from the French word ‘bailer‘, which means to
deliver or give. The tentative release of an accused from custody is termed as bail. In other
words, bail is the security for the accused person. In this CrPC law note, you’ll learn more
about bail under the Indian Criminal Procedure Code.

‘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].

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

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

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.

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.

Bail by Police

The Police Officer power, to release a person on bail who has been accused of an offence and
is in his custody, is categorised under the two heads:
(A)When without any warrant the arrest is made and;

(B)When with the issuance of warrant the arrest is made .

The Power to grant bail by police has been conferred upon them by the virtue of the
following sections:

1) Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of the Code.

2) The powers of police to grant bail under head are controlled by directions endorsed under
Section 71 of the Code. It is under Section 81 of the Code however, which empowers the
police officer to grant bail when the person arrested or produced before him has been accused
of the commission of a bailable offence even when no direction to such effect has been given
in the warrant. In case of non- bailable offence the endorsement on the warrant has to be
strictly followed. Endorsement on warrant however should be by name.

Bail when arrest made without warrant

(i) Bail under section 42 Cr. P.C.:

Section 42 Cr. P.C. 1973 can be invoked when the offender refuses to give name and address
or gives a name and address which the police officer considers to be false. If those particulars
are within the knowledge of the police officer, neither the question of arrest nor the question
of bail will arise. As soon as name and address has been ascertained the police officer cannot
detain him, if he is willing to execute the necessary bonds.

The power to arrest and to release on bail can be exercised by any Police Officer not
necessarily by an officer-in-charge of the Police station because this section has been enacted
to provide for a particular non cognizable offence does not put any restrictions on the power
of a Police Officer to enlarge a person on bail after the correct name and residence have been
ascertained.

(ii) Bail under section 43 Cr. P.C.:

The Code of Criminal Procedure provides for the arrest of person by a private person also
though his powers of arrest are very limited.

After the arrest has been made the arrested person should be, without unnecessary delay
handed over to a police officer, or in his absence, be brought to the nearest police station. The
question of bail will depend upon what opinion the police officer forms about the person
brought before him. If there is no sufficient ground to believe that the arrested person has
committed any offence, he shall at once be released.

If there is reason to believe that such person comes under the provisions of section 41, a
police officer shall re-arrest him and then the normal procedure of investigation,
determination of the question whether a non-bailable case is made out or not and the
desirability of release on bail etc. will arise. If there is reason to believe that he has
committed a non-cognizable offence he shall be released as soon as his name and residence
have been ascertained as provided under section 42 Criminal Procedure Code.

A chowkidar, not being a police officer is not entitled to receive a person arrested under this
section. But where a chowkidar is a police officer as under the Chota Nagpur Rural Police
Act, (Act I of 1914) he can received a person arrested under section 59, Criminal Procedure
Code (old) and detain him in custody.

iii) Bail under sections 56, 57 and 59 Cr. P.C.:

Section 56 mandates that a police officer affecting an arrest without warrant must take or
send the offender arrested, before a magistrate having jurisdiction in the case of before the
officer in charge of a police station. But in section 56, there is an inbuilt provision authorizing
police officer to admit the arrested offender to bail, but power of the police officer is subject
to the provisions herein contained as to bail. Section 56 of the new Code corresponds to
section 60 of the old Code.

Section 57 provides that person arrested not to be detained more than twenty four hours. The
intention of the legislature is that an accused person should be brought before a Magistrate
competent to try or commit with as little delay as possible. Section 57 is pointer to the
intendment to uphold liberty and to restrict to the minimum curtailment of liberty.

It has been stated in Section 59 of the Code that any person who has been arrested by a police
officer shall be discharged only by his own bond, or on bail, or under special order of a
magistrate.

iv) Bail under section 169 Cr. P.C.:

The section refers to the grant of bail not at the start but only on the making of an
investigation under Chapter XII of the Code. Till then bail is not authorized under the
provisions of this section. The power to release on bail a person in custody vests in officer in
charge of the police station or the police officer making the investigation.

An officer-in-charge of the Police Station or an investigating officer cannot release a person

on bail if he has appeared as an accused before the magistrate on the basis of a complaint in
respect of the incident which the police is also investigating.

If the officer in charge of the police station on the investigating officer takes a bond from the
accused for his appearance before the police it is void ab initio.

The admission to bail, therefore, is only a provisional arrangements and the magistrate may
either discharge the bond on order the re-arrest of the accused. The powers of an officer in
charge of the police station on the investigating officer to admit a person to bail are not
hampered by the nature of offence of which he is accused.
v) Bail under section 170 Cr. P.C. :

Under this section the authority to grant bail accrues to an officer in charge of the police
station, “if the offence is bailable”.

It is submitted that a station officer is empowered to grant bail if investigation has disclosed
the offence to be bailable and it is immaterial what the initial accusation against him was.
Under the imperative provisions of section 170, therefore, an officer in charge of the police
station has either to forward the accused in custody or if the offence is bailable or on
investigation found to be bailable, to accept bail for his appearance before a magistrate, he
cannot entertain an application for the withdrawal of a complaint and, therefore, he cannot be
discharged an accused.

vi) Bail under section 437 Cr. P.C.:

The power to release on bail a person accused of a non-bailable offence is conferred upon
only one class of police officers, namely an officer-in-charge of the Police Station under
section 437 sub Section (I).

When an officer in charge admits an accused to bail, it is mandatory for him to record the
reasons or special reasons in the case diary and preserve the bail bonds until they are
discharged either by the appearance of the accused in court or by the order of a competent
court. For the purpose of bail in non-bailable offence, the Legislature has classified them
under two heads: (1) those which are punishable with death or imprisonment for life; (2)
those which are not so punishable. The age or sex or sickness or infirmity of the accused
cannot be considered by a police officer for the purpose of granting bail. These matters may
be taken in view by a court only. An officerin-charge of the police station may grant bail only
when there are no reasonable grounds for believing that the accused has committed a non-
bailable offence or when the non-bailable offence complained of is not punishable with death
or life imprisonment.

Bail by Police when arrest made in pursuance of warrant

The relevant provisions of Code of Procedure in connection with above heading are confined
in section 71 and 81 of Criminal Procedure Code.

(i) Bail under section 71 Cr. P.C.:

The relevant provisions of Code of Procedure in connection with above heading are confined
in section 71 and 81 of Criminal Procedure Code. It is a matter entirely in the discretion of
the court issuing a warrant under this section to give a direction for the release of the arrested
person on bail or not. Even in bailable offence, a court may not give such direction. In the
case of Lachhmi Narain Vs. Emperor, the above has been stated.

When a person who is to be arrested is not arrested until the date on which he has to attend
the court, the direction regarding the taking of bail lapses.
(ii) Bail under section 80 & 81 Cr. P.C. :

When a warrant of arrest is executed outside the district in which it was issued any police
officer who is not a District Superintendent of police or the Commissioner of Police may
release an arrested person according to the directions contained in the endorsement. But a
District Superintendent of Police, the Commissioner of Police in presidency town with in the
local limits of whose jurisdiction the arrest was made shall release on bail the arrested person,
if the offence is bailable and such person is ready and willing to give bail to their satisfaction.

A police officer cannot release a person on bail simply because the arrested person is accused
of a bailable offence. He has to comply strictly with the contents of the endorsement if any.

Bail to Lunatics :

Section 330, Cr. P.C. Bail cannot be claimed as a matter of right for persons of unsound
mind. Courts have been vested with great powers and wide discretion in the matter of grant or
refusal of bail. A Magistrate may release a person of unsound mind on bail even though he is
charged of an offence of the most heinous type and may refuse bail in bailable case if he is of
the opinion that bail should not be allowed.

An accused of unsound mind may be released on security, irrespective of the offence with
which he is charged not only on the finding by the court that the accused is of unsound mind,
but also prior to such finding, during the pendency of the inquiry into his state of mind
[section 328 (2)]

Bail for Contempt in presence of Court under section 346 of Cr. P.C.

When an offence, as is described in section 175, Section 178, 179, 180 or 228 of I.P.C. is
committed in the view or presence of a Criminal Court and that court, instead of proceeding
under section 345, Cr.P.C., considers that the person accused of any of the offences referred
to above should be imprisoned otherwise than in default of fine, or that a fine exceeding two
hundred rupees should be imposed upon him, then the court after it has recorded the facts
constituting the offence and the statement of the accused, may forward the case to a
Magistrate having jurisdiction to try the same, and for the appearance of such accused person
may require security to be given before such Magistrate or shall forward such person in
custody to such Magistrate in case sufficient security is not given under this section as under
the provisions of section 340, the person complained against has not to apply for bail to the
court. It is the discretion of the court forwarding the complaint either to ensure the attendance
of the accused by demanding a security for his appearance before the transferee Magistrate or
it may just inform the accused of the date on which he has to appear before that court. He
cannot be taken in custody merely because he has not applied for bail. He can be taken in
custody if security is demanded from him and he does not give sufficient security.

Bail to First offender under section 360, Cr. P.C.

Sub-section (1) of section 360, Criminal Procedure Code, deals with the power of a court or a
Magistrate of the second class specially empowered by the State Government in this behalf,
to release a convicted offender on his entering into a bond, with or without sureties, to appear
and receive sentence when called upon during such period (not exceeding three years) as the
Magistrate may direct, and in the mean time to keep the peace and be of good behaviour. The
Magistrate thus has discretion either to punish the offender with imprisonment or release him
on probation of good conduct.

Post-Conviction and Pre-Appeal Bail under section 389 Cr. P.C. :

The section contemplates post-conviction and pre-appeal period. Pending an appeal against
conviction appellate Court may release the convict on bail and High Court can exercise this
power when appeal lies to Sessions Court. So far as the court convicting the accused is
concerned, the court is bond to admit the accused to bail pending order passed by appellate
court or High Court when (a) the accused was already on bail and has been sentenced to
imprisonment for a term not exceeding three years; or (b) when the offence was a bailable
one. Even on fulfilment of the condition court on convicting the accused may refuse bail if
there exists a special reason. Under this section an intention to present an appeal on the part
of the convicted person is sufficient reason to justify the release of a convicted person on bail.
It may further be noted that an order of bail under this section is for a limited period only and
is applicable only to “convicted” persons and not to those who are bound over.

Bail while making reference under section 395 Cr. P.C. :

When a Magistrate makes a reference under section 395, CrPC, to the High Court for its
opinion on the validity or otherwise of any act, Ordinance or Regulation or under any other
section of this act, he may then in such case, pending the High Court’s decision, either
commit the accused to jail or release him on bail to appear when called upon. The Magistrate
will exercise his discretion in favour of the accused or against him according to the
seriousness of the charge and severity of punishment provided in that act, Ordinance or
Regulation.

Bail During Revision Under Section 397 Cr. P.C. :

The Sessions Court and the High Court in exercise of revisional power can call for records of
inferior courts for the purpose of satisfying himself as to the correctness, legality or propriety
of any finding, sentence or order recorded or passed and as to the regularity of any
proceedings of such inferior court. When such revisional Court calls for the record of an
inferior Court, he may direct that the execution of the sentence or order be suspended and, in
case the accused is in confinement, then he may be released either on bail or on his own bond
pending the examination of the record.

Bail under Section 437 Cr. P. C. Section 437:

It deals with bail in bailable offence. Grant of bail is a rule whereas refusal in this context is
an exception. A person accused of bailable offence has the right to be released on bail. Bail in
cases of bailable offences is compulsory bail. It is a discretionary option to grant a bail to a
person accused of bailable offence. When a person who is suspected of committing a bailable
offence is produced before a Magistrate and he is prepared to give bail, Magistrate has to
release him on bail without having any other option.

Bail for non-bailable Offence: Under Section 437 Cr. P. C.:

The provisions of section 437 empower two authorities to consider the question of bail,
namely-

(1) a “court” which includes a High Court and a Court of Session, and

(2) an officer-in-charge of the police station who has arrested or detained without warrant a
person accused or suspected of the commission of a non-bailable offence. Although this
section deals with the power or discretion of a court as well as a police officer in charge of
police station to grant bail in non- bailable offences it has also laid down certain restrictions
on the power of a police officer to grant bail and certain rights of an accused person to obtain
bail when he is being tried by a Magistrate.

Section 437, Criminal Procedure Code, deals with the powers of the trial court and of the
Magistrate to whom the offender is produced by the police or the accused surrenders or
appears, to grant or refuse bail to person accused of, or suspected of the commission of any
non-bailable offence.

Criteria for Judicial Discretion to Grant or Refuse Bail

This judicial discretion has to answer one of the most important fundamental rights
guaranteed under Article 21 of the Constitution, namely, personal liberty. Grant of bail may
he gifting personal liberty to a person who has been arrested or who is anticipating an
imminent arrest. On the other hand, refusal of bail implies sending that person to jail, or to
police custody, as the case may be, and thereby depriving that person of his personal liberty.

In fact, the question of “bail or jail?” has a bearing not only on the individual concerned but
also on the society in general, for, an innocent person sent to jail may not augur well for a just
society whereas a dangerous and hardened criminal released on bail can do more harm to the
society by way of destroying the evidence, threatening the witnesses, evading the judicial
process or may be by committing more offences. The importance of this judicial discretion
cannot therefore be understated.

Frequently Asked Questions:

1) When can a bail be denied?

a. As per section 436 (2), if a person has violated the conditions of the bail bond earlier, the
court may refuse to release him on bail, on a subsequent occasion in the same case. He can
also be asked to pay penalty for not appearing before the court in the proceedings against him
b. It is clear that the provisions related to bail in case of non-bailable offences gives a
discretionary power to the police and to the court. However the power is not without any
restraint. Section 437 disallows to be given bail under following conditions:

 If it appears there is a reasonable ground for believing that he has committed an

offence punishable with life imprisonment or death.
 If such offence is cognizable and the person has been previously been convicted of
an offence with death or life imprisonment

2) Is cancellation of bail possible?

Although there was no provision for cancellation of bail but in Talib’s case (AIR 1958) it has
been held by the hon’able court that the absence of such provision not as a lacuna but as a
recognized power of high court for cancellation of bail. According to section 437 (5), any
court which has released a person on bail may direct a person to be arrested or put into
custody.

Section 439 CRPC also grants power to the high court and the courts of session to cancel the
bail and put the person into custody.

3) Can a bail be refused in cases of bailable offences?

Section 436 (2) of the chapter 38 of Crpc has empowered the court for denial of bail in cases
of bailable offences if the accused fails to comply with the conditions of bail bonds

Conclusion
The power given to the police for arrest has become one of the remunerative sources for

police corruption. It has become a handy tool who act with ill motive.

Courts, especially the district courts and courts subordinate to it, hesitate to provide bail to

the accused as the fear grows in Judicial Magistrates’ minds as to they may be questioned by

higher judiciary or vigilance case may be initiated against them.

In such cases, the accused approaches the higher judiciary for bail, resulting in courts’

overcrowding. Therefore, Judicial Magistrates of the level of District Judge and below should
adhere to the directions given by High Courts and Supreme Courts while deciding bail related

cases.

This not only will help the accused in getting bail rather overcrowding of higher courts can be

prevented. This will also be a lesson for the police for making unnecessary arrests.