Bail is one such mechanism which is used to ensure the presence of an accused whenever

required by the court. CrPC does not define the term Bail, but essentially, Bail is an
agreement in which a person makes a written undertaking to the court.

Object of Bail

According to ‘Black’s Law Dictionary’ the object of 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 judgement of the court.’’

In ‘Moti Ram vs State of MP‘, the court held that there is no definition of bail in the code,
although the terms bailable offence and non-bailable offence have been defined

For the purpose of bail, offences are classified into bailable and non-bailable offences which
are discussed below :

a bailable offence is an offence of relatively less severity and for which the accused has a
right to be released on bail.
non-bailable offence is a serious offence and for it, the accused cannot demand to be
released on bail as a right.

Section 2 (a)
“Bailable offence" means an offence which is shown as bailable in the First Schedule, or
which is made bailable by any other law for the time being in force: and "non-bailable
offence" means any other offence.

These offences include offences such as obstructing a public servant from discharging his
duties, bribing an election official, and providing false evidence.
Non-bailable offences include offences such as murder, threatening a person to give false
evidence, and failure by a person released on bail or bond to appeal before court.

When and When not can Bail be granted?

The working of the bail system in India was highlighted in the case of Hussainara Khaton
vs Home Secretory, 1980. In this respect, J Bhagwati observed that the courts must
abandon the antiquated concept under which pretrial release is ordered only against bail
with sureties.

Bail for Bailable offences -

Section 436 - When any person other than a person accused of a non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station,
or is brought before a court, and is prepared at, any, time while-in the custody of such officer
or at any stage of the proceeding before such court to give bail, such person shall be
released on bail.
Section 50(2)
imposes an obligation on the police officer to notify the detained person about his right to get
bail if he is detained on a bailable offence

Section 440(1)
specifically provides that the amount of bail cannot be unreasonably high.

An amendment to Section 436

mandates that an indigent person, who is unable to provide any bail amount, must be
released. If a person is unable to provide bail amount for a week, then he can be considered
indigent.

Section 436 A
allows a person to be released on his own surety if he has already spent half the maximum
sentence provided for the alleged crime in jail. However, this does not apply if death is one of
the punishments specified for the offence.

Bail for Non-Bailable offences - SECTION 437

When a person is detained for a non-bailable offence, he cannot demand to be released on

bail as a matter of right.

If it appears to such officer or Court at any stage of the investigation 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 be released on
bail at the discretion of such officer or Court, on the execution by him of a bond without
sureties for his appearance.

A police officer or the court may also release a person from custody if he feels that there are
any special reasons. But he must record his reasons in writing.

Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations
that must be given while giving bail in case of non-bailable offences. These are -

● the nature of the crime

● the nature of the charge, the evidence, and possible punishment
● the possibility of interference with justice
● the antecedents of the applicant
● furtherance of the interest of justice
● the intermediate acquittal of the accused
● socio-geographical circumstances
● prospective misconduct of the accused
● the period already spent in prison
● protective and curative conditions on which bail might be granted.
TIME PERIOD

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 of the said period, be
released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.

If, at any time, after the conclusion of the trial of a person accused of a non-bailable
offence and before judgement is delivered, the Court is of opinion that there are reasonable
grounds for believing that the accused is not guilty of any such offence, it shall release the
accused, if he is in custody, on the execution by him of a bond without sureties for his
appearance to hear judgment delivered.

BAIL ON DEFAULT

SECTION 167 READ WITH SECTION 57

if the investigation is not done within 24 hours, the arrested person must be bought before
the court and if required, the police must make a case to extend the detention. The court
may extend the detention by 15 days. However, the detention cannot extend more than 60
days (or 90 days, if the offence is punishable by death or imprisonment for life), after which
the accused must be released on bail. This provision applies for bailable as well as
non-bailable offence.

When can bail be denied -

1. 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
Section 437 disallows bail to be given in the following conditions.

if there appears reasonable grounds for believing that the person has been guilty of an
offence punishable with death or imprisonment for life;

if such offence is a cognizable offence and the person has been previously convicted of an
offence punishable with death, imprisonment for life or imprisonment for seven years or
more,
or he had been previously convicted on two or more occasions of a non-bailable and
cognizable offence.
The person may, however, be released on bail if such person is under the age of sixteen
years or is a woman or is sick or infirm.

Persons accused of Dowry Death

CANCELATION

section 437 (5) any Court which has released a person on bail under section 437(1) or
437(2), may direct that such person be arrested and commit him to custody. This basically
cancels the bail. However, it must be noted that only the court that has given the bail can
cancel it.

Surendra Singh vs State of Bihar 1990, Patna HC pointed out that a bail may be cancelled
on following grounds -

1. When the accused was found tampering with the evidence either during the investigation
or during the trial
2. when the accused on bail commits similar offence or any heinous offence during the
period of bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
4. when the offence so committed by the accused had caused serious law and order
problem in the society
5. if the high court finds that the lower court has exercised its power in granting bail wrongly
6. if the court finds that the accused has misused the privileges of bail
7. when the life of accused itself is in danger

ANTICIPATORY BAIL

Section 438 - When any person has reason to believe that he may be arrested on an
accusation of having committed a non-bailable offence, he may apply to the High Court or
the Court of Sessions for a direction under this section, and that Court may, if it thinks fit,
direct that in the event of such arrest, he shall be released on bail.

438(1) that the power to grant anticipatory bail is given concurrently to Court of Session and
High Court. Thus, a person can approach either of the courts to get this relief.
section 438 A,
the court may also grant an interim order and in that case an opportunity is given to the
public prosecutor present his arguments on why the applicant should not be given bail.

Section 438 B, if the court finds it necessary, it may require the applicant to be present
personally at the time of final determination of the interim order.

Some high courts have held that the grounds mentioned in Section 437 for denying
regular bail are applicable for anticipatory bail as well

The Gurbaksh Singh Sibbia Case: A Critical Analysis

The case under review involved Mr. Gurbaksh Singh Sibbia, then a Minister in the
Government of Punjab, who, along with others, faced allegations of corruption. Their
anticipatory bail application was initially dismissed by the Punjab and Haryana High Court
but was later allowed by the Supreme Court. This judgment laid down significant guidelines
for the application of Section 438, ensuring that the courts exercise their discretionary
powers judiciously.

The Supreme Court Guidelines

The Supreme Court emphasised that anticipatory bail should not be restricted only to
‘exceptional cases’ but should be used with caution and circumspection.
The ruling outlined that the individual must have a ‘reasonable apprehension’ of arrest,
and that anticipatory bail should not be denied outright for offences punishable with death or
life imprisonment.
Additionally, it held that interim bail can be granted without notice to the Public Prosecutor,
though notice should follow immediately.

Sushila Agarwal And Ors. V. State of NCT Delhi And Anr.

LEGAL ISSUES

Whether the protection regarding anticipatory bail under section 438 of Cr.P.C.1973 should
be restricted for a fixed period so that the accused person should seek regular bail?

Whether the duration of an anticipatory bail should end at the time when the accused person
is summoned by the court?

With regard to the first issue it was held that the order of an anticipatory bail providing
protection to the accused person under section 438 of the Cr.P.C. should not be limited or
restricted to a fixed time period, and it should be in favour of the accused person.

With regard to the second issue it was held that generally duration of an anticipatory bail
does not come to an end at the stage when accused is summoned by the court, or when
charges are frames, but can continue till the end of the trial.
Observations
The Court observed that the Section 437(1) of CrPC is only concerned with the Court of
Magistrate and there is no provision under Section 437(1), when the accused is for the first
time produced after initial arrest before the Court of Session or before HC.
If the accused with the allegation against him of the offence punishable with death or
imprisonment for life, then the Court of Magistrate has no other option except rejection of the
bail.
Under Section 439(1) it confers the special powers to the HC or Session Court in respect of
bail.
The common point in the case of Section 437(1) and Section 439(1) are the nature and
gravity of the circumstances in which the offences are committed; the position and status of
the accused with reference to the victim and the witnesses.
The Session Court and the HC may be approached by the accused after refusal of bail by
the Magistrate under Section 437.
There are two paramount considerations to be looked into while granting bail:
Likelihood of the accused fleeing from justice; and
Tampering with prosecution evidence related to ensuring a fair trial of the case in a court of
Justice.
The Court said as far as the bail of the offence punishable with death or life imprisonment is
concerned, it is necessary for the Court to consider whether the evidence discloses a prima
facie case to warrant his detention in jail besides the other relevant factors.
Conclusion