Meaning and Definition

There is no definition of bail in the Code although offences are classified as bailable and non-bailable. Bail has
been defined in law Lexicon as security for the appearance of the accused person on giving which, he is released.
pending trial or investigation. What is contemplated by bail is to procure the release of a person from legal
custody, by undertaking that he shall appear at the time and place designated and submit himself to the
jurisdiction and judgment of the Court. Thus Bail is a Procedure by which a judge or magistrate sets at liberty one
who has been arrested or imprisoned, upon receipt of security to ensure the released prisoner's later appearance
in court for further proceedings.

Bail is a declaration made by the accused that he shall not flee if enlarged on bail and shall not absent himself from
any inquiry or legal proceeding he is required to attend. The court if deems fit may pass an order to enlarge the
person on bail. For a deeper understanding, it needs to be stated that Bail is of two types

 Mandatory Bail
 Discretionary Bail

Object

Personal liberty is a fundamental right guaranteed by the Constitution and the basis of the Rule of Law. The arrest
and detention of an accused person is to secure their presence during trial and ensure they are available to face
punishment if found guilty. The principle of release on bail is that the accused is presumed innocent until proven
guilty. They are entitled to freedom and an opportunity to handle their case, provided their attendance is secured.
After security is provided, the accused is released from custody to private persons who are bound as sureties to
produce them to answer the charge at a specified date and place.
In Sunil Fulchand v. Union of India," the Supreme Court stated; "The effect of granting bail is to release the
accused from internment though the court would still retain constructive control over him through the sureties. In
case the accused is released on his own bond such constructive control could still be exercised through the
conditions of the bond secured from him."

Section 436 of the CrPC : The provisions specifically dealing with Mandatory Bail is Section 436 of the CrPC. This
provision entails that the person arrested without the warrant of the officer of the court, the person shall be
released on bail. Since this is a ‘shall’ provision it needs to be understood that the discretion of the court does not
apply in such a provision.

Section 437 of CrPC, it is stated that under certain conditions bail may be taken for a Non-Bailable offence
however it is a nugatory provision. Which means that it stated certain conditions when bail cannot be granted and
they are:

 That an accused need not be enlarged on bail if there are reasonable grounds to believe that the person is
involved in the commission of an offence which is severe in nature. The severity is marked by the threshold
of two punishments, namely, life imprisonment and capital punishment or execution.
 That the accused may not be enlarged on bail if the accused’s previous convictions entail that he/she has
been convicted of an offence which is punishable for seven years or more under the IPC and is a cognizable
offence.
 However, the proviso protects an accused who is below the age of sixteen years, or is a woman or is sick or
infirm in any way. Thereby this provision contains certain protection provisos as well.
 Since it is a discretionary bail the court may use its discretion and if under the circumstances of the case
believes that it shall be just and proper to release the person on execution of the bond it may do so.
 It furthermore, highlights that the mere fact that the accused needs to be identified in a Test Identification
Parade cannot be a sole reason for denial of the bail.
 But keeping in line, that the accused may flee or absent himself, to ensure non-occurance of such an
incident the accused shall execute a bond ensuring that he shall not flee away at times when he is required
to present himself.
 The provision states that if within sixty days of his arrest if it is seen that the trial of such person who is
charged with a non-bailable offence is concluded from the date fixed for taking evidence, the magistrate on
his accordance if he deems fit, may release the person on bail.

Section 438 of CrPC :

The nature of bail envisaged under this provision is entirely different from any of the other provisions mentioned
above. However, one peculiar feature remains the same. That is the power of the court to exercise its discretion to
grant such bail.

Now, this provision mainly comes in effect when a person who has an apprehension that he may be charged with
commission of an offence, and he has a reason to believe that such allegation is false and frivolous then this
provision comes to act as a safety net for such persons who may be arrested on to pretext of false allegations by a
person whose intention may be merely to tarnish the reputation or cause hardships in the life of the person.

Therefore this provision is protection or a safeguard for such persons. But for a court to grant such anticipatory
bail becomes equally difficult. Because while hearing such bail application it is only one side of the incident which
is narrated to the court. Therefore it is a duty imposed upon the court to very cautiously allow such grant of bail
called the “Anticipatory bail”.

Section 439 of CrPC

This provision is different from section 437 because this provision is court specific. It only applies in a Court of
Sessions and a High court. But this provision is no different from section 437, this also gives discretionary power to
the abovementioned courts to grant bail to a person, subject to the conditions imposed by the court itself.

This provision is only applied to persons who are charged with any offence mentioned under section 437(3) of
CrPC. Further, this provision also empowers the court of sessions and high court to bring into custody an accused
released on bail.

BROAD PRINCIPLES

The Law Commission has stated that the Code has adopted the following broad principles in regard to bail:
(i) bail is a matter of right, if the offence is bailable;
(ii) bail is a matter of discretion, if the offence is non-bailable;
(iii) bail shall not be granted by the magistrate if the offence is punishable with death or imprisonment for life; but
if the accused is a woman, or a minor under the age of sixteen years, or a sick or infirm person, the court has a
discretion to grant bail;
(iv) the Court of Session or the High Court have a wide discretion in granting bail, even in respect of offences
punishable with death or imprisonment for life.

WHEN BAIL MAY BE GRANTED

(a) Basic rule

Individual freedom is the basic concept in be zealously safeguarded by courts. democracy. Liberty Every person
including of every citizen must an accused is entitled to freedom and he cannot be punished by keeping him
behind the bars unless he is found guilty by a competent court of law. Hence, basic rule should be "bail and not
jail" except where there are circumstances suggestive of the accused fleeing the course of justice, possibility of his
repeating offences and the like.

(b) Bail as of right

(i) Bailable offences

Where a person accused of a bailable offence is arrested or detained without warrant or appears or is brought
before a court and is prepared to give bail, the police officer or the court having custody of such person shall
release him on bail. The police officer or court, instead of taking bail from him may release him on his executing a
bond without sureties. If a person fails to comply with conditions of the bail-bond as regards the time and place of
attendance, the court may refuse to release him on bail when on a subsequent occasion in the same case he
appears or is brought before the court. The court can also take action for breach of conditions by him.

In all bailable offences, bail can be claimed as of right. In State of Gujarat v. 19 Lalsingh, a Circular was issued by
the District Superintendent of Police directing all Police Sub-Inspectors not to release on bail persons arrested for
having committed certain offences punishable under the Bombay Prevention of Gambling Act, though the offences
were bailable.

(ii) Where investigation is not over within prescribed period ('Default bail')
Section 167(2) provides that where a person is in custody and the investigation is not over in ninety days where
such investigation relates to an offence punishable with death, imprisonment for life or imprisonment for ten
years or more and in sixty days, where such investigation relates to any other offence, the accused is entitled to
get bail as of right after the period of ninety days or sixty days, as the case may be, is over. The language of section
is clear and it is a mandate of the Legislature. The right is absolute. It is known as "order on default"."

(iii) Where further investigation is necessary

Where any person accused or suspected of commission of any non-bailable offence is arrested or detained
without warrant by a police officer or appears or is brought before a court, and it appears to such officer or court
at any stage of investigation, inquiry or trial that there are no reasonable grounds for believing that the accused
has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the
accused shall pending such inquiry be released on bail after recording reasons. The accused will execute a bond
without sureties for his 22 appearance as directed by such officer or court.

(iv) Where maximum period of detention is over

Section 436A, as inserted by the Code of Criminal Procedure (Amendment) Act, 2005 mandates that an undertrial
prisoner, other than the one accused of an offence punishable with death, shall be released on bail if he has been
under detention for a period of more than one-half of the maximum sentence provided for the alleged offence.

(v) Where trial is not over within 60 days

If in any case triable by a magistrate, the trial of a person accused of any non-bailable offence is not concluded
within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in
custody during the whole period, be released on bail unless the magistrate directs otherwise by recording reasons
for doing so.

(vi) Where there are no reasonable grounds to believe accused guilty

If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment
is delivered, the court is of the opinion that there are reasonable grounds for believing that the accused is not
guilty of any such offence, it shall release the accused on bail, if he is in custody.

(c) Discretion in granting bail

(i) Non-bailable offences

Where any person accused or suspected of commission of any non-bailable offence is arrested or detained
without warrant by a police officer or appears or is brought before a court, other than the High Court or Court of
Session, he may be released on bail after recording reasons, if such offence is not punishable with death or
imprisonment for life.

(ii) Where accused is minor, woman, etc.

Where any person accused or suspected of commission of any non-bailable offence is arrested or detained
without warrant by a police officer or appears or is brought before a court, other than the High Court or Court of
Session, he may be released on bail, if such person is a minor or a woman or is sick of enabling and discretionary
and not obligatory or peremptory.

(iii) Offences punishable with imprisonment for seven years or more

Where any person accused or suspected of commission of an offence punishable with imprisonment for seven
years or more under Chapter 6 (offences against State); Chapter 16 (offences affecting human body); and Chapter
17 (offences against property) or abetment of, or conspiracy or attempt to commit any such offence, the court
may impose conditions on him to ensure his presence at trial or to ensure that such person shall not commit a
similar offence.

(iv) Bail in other cases

Section 389 empowers an appellate court to grant bail to a convicted person during the pendency of appeal.
Similarly, Sections 397 and 401 provide for fo grant of bail to an applicant by the revisional court during the
pendency of the revision.
A court recording conviction against a person may release him on bail subject to the conditions and limitations
mentioned in sub-section (3) of Section 389. Likewise, a court making reference to a High Court under Section 395
during the pendency of such reference may grant bail to the accused. The Supreme Court has power to release
appellant-convict on bail during the pendency of an appeal or Special Leave Petition filed by him.

(v) Appearance before appellate court

Section 437A, as inserted by the Code of Criminal Procedure (Amendment) Act, 2008 requires the accused to
execute bail bonds to appear before appellate court when a notice is issued in an appeal against an order of
acquittal.

(d) Hearing of Public Prosecutor

The Code of Criminal Procedure (Amendment) Act, 2005 provides that if the allegation against the accused is that
he has committed an offence punishable with death, imprisonment for life or imprisonment for seven years or
more, he cannot he released on bail by the court without hearing the Public Prosecutor.

The provision is salutory and in the interest of society and a step in the direction of proper administration of
criminal justice. Malimath Committee has also recommended to make such provision.

(e) Considerations

Bail can be claimed as of right for bailable offenses, but it cannot be granted as a matter of course for non-bailable
offenses. The discretion of the court must be exercised reasonably and on sound freedom judicial principles.
Deprivation by refusing bail should not be punitive, and the basic rule should be "bail and no jail."

(i) the nature and gravity of the offence; (ii) the enormity of the charge; (iii) the severity of the punishment
prescribed; (iv) the manner in which the offence is committed; (v) the nature of evidence in support of accusation;
(vi) involvement of the accused in other cases; (vii) antecedents of the accused; (viii) availability of accused for
investigation and interrogation; (ix) the probability of accused absconding, if released on bail; (x) the likelihood of
witnesses being tampered with or terrorised; (xi) the danger of offence being repeated or continued; (xii) the
delay likely to be occasioned in trial; (xiii) the opportunity to the accused to prepare his defence; (xiv) age, sex,
health, background, antecedents and character of the accused; (xv) circumstances under which the offence was
committed; (xvi) period for which the accused remained in custody; (xvii) position and status of the accused with
reference to the victim and witnesses; (xviii) character of the evidence against the accused; (xix) the impact on the
society; (xx) larger interests of public, etc.

(f) Recording of reasons

Sub-section (4) of Section 437 requires a police officer or a court for the reasons to be recorded in writing when a
person accused of a non-bailable offence punishable with death or imprisonment for life is released on bail. It
would enable the superior court to satisfy that the power has or has not been properly exercised. It would also
reflect whether the police officer or the court has passed the order after application of mind and on consideration
of relevant circumstances. If the reasons are not recorded, the order can be set aside by the superior court.

(g) Special powers of High Courts and Sessions Courts

Section 439 allows High Courts and Sessions Courts to release individuals accused of any offense and in custody on
bail. They can impose necessary conditions if the offense is specified in sub-section (3) of Section 437. They can
also set aside or modify conditions imposed by a magistrate. However, if the case is exclusively triable by the Court
of Session or punishable with life imprisonment, the High Court or Court of Session must issue notice to the Public
Prosecutor before releasing the accused on bail. Additionally, a High Court or Court of Session may direct arrest
and custody of a released person.

(h) Conditions

The Code of Criminal Procedure (Amendment) Act, 2005 requires courts to impose conditions on accused
individuals to ensure they comply with the bond, avoid similar offenses while on bail, and protect the interest of
justice. These conditions can include not leaving the country, surrendering their passport, entering a specific area,
reporting at a police station, marking their presence, or making themselves available for interrogation or medical
examination. However, these conditions should not be harsh, unfair, or extraneous. Additional conditions may be
imposed, such as not leaving the country, not threatening to hamper investigation, absconding to witnesses,
evading or delaying trial, or interfering with the justice process. The authors argue that these conditions are not
necessary, as the accused is not at liberty to commit similar offenses or threaten prosecution witnesses.

(i) Successive applications

An order refusing bail does not prevent another application for bail if new information is provided. However, if the
High Court rejects an application without substantial changes, the order is not considered legal. Re-agitation of
previously rejected issues is not allowed. Once the application is rejected, the Sessions Court cannot entertain a
second application. In the High Court, the application should be placed before the same judge who decided the
earlier one. In summary, a rejected bail application is not maintainable without new information.

(j) Conclusions

The Supreme Court's observations in Shahzad Hasan Khan v. Ishtiaq Hasan Khan emphasize the importance of
safeguarding a citizen's liberty through the process of law. The court emphasized that when a person is accused of
a serious offense like murder and their bail applications are rejected, the prosecution has the right to present
correct facts. The process should be administered considering the interests of the accused, the victim's family, and
the community's collective interest, preventing parties from losing faith in the institution and engaging in private
retribution.
WHEN BAIL MAY BE REFUSED : Where any person accused or suspected of any non-bailable offence is arrested or
detained and there appears reasonable grounds for believing that he has been guilty of an offence punishable with
death or imprisonment for life, he shall not be released on bail by the magistrate

Even where the offence is not punishable with death or imprisonment for life but a cognizable one and the person
has been previously convicted of an offence punishable with death or imprisonment for life or imprisonment for
seven years or more or had been previously convicted on two or more occasions of a cognizable offence, he shall
not be released on bail by the magistrate.

The first proviso, however, authorises the court to grant bail if the accused is (i) a minor; or (ii) a woman; or (iii) a
sick or infirm person. The second proviso also empowers the court to grant bail for any other specified reason
which the court considers just and proper.

The distinction created between persons accused of graver offences and lesser offences or between ordinary
persons and young persons, women and infirm persons cannot be said to be arbitrary or unreasonable and,
therefore, is not hit by Article 14 of the Constitution. Section 306(4)(b) enacts that a person accepting a tender of
pardon if not on bail will not be released on bail till the trial is over.

THE DISTINCTION BETWEEN ORDINARY BAIL AND ANTICIPATORY BAIL: The distinction between an order of
ordinary bail and an order of anticipatory bail is that whereas the former is granted in anticipation of arrest and is
therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-
bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following
upon arrest for offence or offences in respect of which the order is issued. Unlike a post-arrest order of bail, it is a
pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the
accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) which deals with
how arrests are to be made, provides that in making the arrest, the police officer or other person making the
arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to
custody by word or action". A direction under Section 438 is intended to confer conditional immunity from this
'touch' or confinement.