What is Bail?

The Code of Criminal Procedure, 1973 hereinafter CrPc

Bail is an instrument which is used to ensure the presence of an accused whenever required by the
court .The criminal procedure code does not define the term bail, but essentially,bail is an
agreement in which a person makes a written undertaking to the court to appear before it whenever
required and comply with any conditions set out in the agreement. He also assures to forfeit a
specified sum of money if he fails to comply with any terms and conditions of the agreement.
The Bhartiya Nagrik Suraksha Sanhita ,2023 hereinafter Bnss
As per Section 2 (b) "bail" means release of a person accused of or suspected of commission of an
offence from the custody of law upon certain conditions imposed by an officer or Court on
execution by such person of a bond or a bail bond.

Provisions regarding bail can be classified into two categories:

(i) bailable Offences ; and
(ii) non-bailable Offences

CRPC
As per 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.
BNSS
As per Section 2 (c) "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.

Hence , no substantive difference in the definitions provided in Section 2(a) and Section 2(c); they
are effectively the same in content and meaning.

Bailable Offences

In the case of bailable offences, the granting of bail is a matter of legal right. This means that bail
cannot be refused and must be granted by a police officer in charge of a police station having the
accused in custody. The release may be ordered upon the accused executing a bond, even without
sureties.
Non-Bailable Offences

In non-bailable cases, only the Court can order the release of the accused person on bail. However,
if the police officer or the Magistrate is of the opinion that there is no sufficient material against the
accused and that the complaint needs further investigation, they may also release the accused on
bail. Normally, bail is not granted when the accused appears, on reasonable grounds, to be guilty of
an offence punishable with death or imprisonment for life. However, women, children under 15
years of age, and sick people can be released on bail by a Magistrate even if charged with offences
punishable by death or life imprisonment.

Types of Bail

Regular Bail

Regular bail allows a court to release a person in custody on the condition they do not obstruct
justice. Under Section 436 of the CrPC, a person arrested for a bailable offense has the right to be
released on bail, often involving executing a bond with sureties. If an undertrial prisoner is detained
for a duration equal to 50% of the maximum imprisonment term for the offense, they must be
released on bail upon executing a bond.

For non-bailable offenses, bail is discretionary and requires a strong case. Bail can be granted if the
accused is under 16 years of age, a woman, ill, or infirm. Habitual offenders can get bail only under
special circumstances. Section 437 of the CrPC applies to bail petitions in magistrate’s courts, while
Section 439 applies to Sessions or High Courts.

Anticipatory Bail

Anticipatory bail under Section 438 of the CrPC can be sought by anyone anticipating arrest for a
non-bailable offense. This application is filed in the High Court or Sessions Court before the arrest.
If granted, it prevents the police from arresting the individual. The Supreme Court clarified that
anticipatory bail remains effective until the end of the trial.

Conditions for anticipatory bail include a reasonable apprehension of arrest, the offense being
bailable, submission of the application before arrest, the applicant not being a habitual offender, and
not leaving the country without court permission.

Interim Bail

Interim bail is a temporary form of bail granted during the pendency of an application for
anticipatory or regular bail. It provides temporary relief to the accused, releasing them from custody
until a final decision on the bail application is made. If interim bail conditions are not met, the
accused may be taken back into custody.
Default Bail

According to Section 167 of the CrPC, if an investigation cannot be completed within 24 hours of
arrest, the accused must be presented before a Magistrate. The Magistrate can authorize detention
for up to 15 days, extendable by another 15 days. For offenses punishable by death, life
imprisonment, or at least 10 years, the detention period is 90 days; for other offenses, it is 60 days.
If the police fail to file a chargesheet within these periods, the accused is entitled to default bail.
This right is absolute and not at the Court's discretion.

Legal Provisions Under CrPC

Chapter XXXIII: Bails and Bonds

This chapter of the CrPC deals with the provisions related to bails and bonds. It includes the
following sections:

• Section 436: Bail in bailable offences. ( Sec 478 Bnss)

- What: Provides that a person accused of a bailable offence is entitled to bail.
- When: When a person is accused of a bailable offence, arrested or detained without a warrant, or
appears before a court.
- How: The accused must execute a bond, even without sureties. The police officer or Magistrate
has no discretion to refuse bail if the conditions are met.
- Why: Ensures that individuals accused of minor offences are not unnecessarily detained.

• Section 437: Bail in non-bailable offences. (Section 480 Bnss)

- What: Governs the grant of bail for non-bailable offences.
- When: The court can grant bail considering factors such as the nature of the accusation,
evidence, severity of punishment, and the likelihood of the accused tampering with evidence.
- How: The court exercises discretion and considers the seriousness of the offence.
- Why: To prevent the release of potentially dangerous individuals while protecting the rights of
the accused.

• Section 438: Anticipatory bail.( Section 482 Bnss)

- What: Allows a person to seek bail in anticipation of arrest on the accusation of having
committed a non-bailable offence.
- When: Before actual arrest.
- How: The accused applies to the High Court or Court of Session for anticipatory bail.
- Why: To protect individuals from arbitrary and unjustified arrest.

• Section 439: Special powers of High Court or Sessions Court regarding bail.
( Section483Bnss)
- What: Grants special powers to High Courts and Sessions Courts to release any person on bail.
- When: At any stage of the proceedings.
- How: Courts may impose conditions deemed necessary to ensure the presence of the accused
during the trial.
- Why: To provide a higher level of judicial scrutiny and flexibility in granting bail.
 • Section 389: Suspension of sentence pending appeal and release on bail. (Section 430 Bnss)
- What: Allows the suspension of the sentence of a convicted person pending appeal and their
release on bail or bond.
- When: After conviction and during the appeal process.
- How: The court evaluates the appeal and may grant bail considering various factors.
- Why: To ensure that the convicted person can exercise their right to appeal without undue
hardship.

• Section 167(2): Mandatory release on bail if the investigation is not completed within the
stipulated time.( section 187(2) BNSs)
- What: Mandates the release of the accused on bail if the investigation is not completed within
the stipulated time.
- When: If the investigation exceeds 60 or 90 days (depending on the offence) without filing a
charge sheet.
- How: The investigating police must release the accused on bail.
- Why: To prevent prolonged detention without trial and encourage timely completion of
investigations

Considerations for Granting Bail

When granting or refusing bail, courts consider-

I. the nature of the accusation,

II. the evidence,

III. the severity of punishment,

IV. the risk of tampering with evidence or witnesses, and

V. the likelihood of the accused committing further offences if released.

Bail is a procedural privilege and not an automatic right, depending on statutory provisions. Courts
must consider the accused's economic background when setting bail amounts, ensuring it is not
excessively burdensome.

CASE LAWS
1. Case Title: State of Rajasthan, Jaipur vs. Balchand

Equivalent Citations: AIR 1977 SC 2447, MANU/SC/0152/1977, (1977) 4 SCC 308, [1978] 1
SCR 535

Basic Principle laid : Bail is the rule and jail is the exception
Facts of the Case/Proposition:

The petitioner, Balchand, applied for bail after surrendering following the grant of leave to the State
to file an appeal against his acquittal by the High Court. The primary issue in this case was whether
bail should be granted, considering the gravity and heinousness of the offense, the petitioner's
conduct while on bail, and his social circumstances.

Held:

The Supreme Court of India allowed the petitioner's bail application. Despite the gravity of the
offense, the Court emphasized the principle of "bail, not jail," noting the petitioner's consistent
compliance with bail conditions during the trial and the absence of any misuse of the court's trust.
Given the petitioner's age (27 years), family responsibilities, and favorable social circumstances, the
Court decided that granting bail was appropriate. The petitioner was required to report to the police
station once every fortnight and provide a bond of Rs. 5,000/- with one surety to the satisfaction of
the Additional District and Sessions Judge.

2. Case Title: Gudikanti Narasimhulu and Ors. vs. Public Prosecutor, High
Court of Andhra Pradesh
Equivalent Citations:
AIR 1978 SC 429 , 1978 SCR (1) 240, 1978 SCC (Cri) 115, [1978] 2 SCR 371

Basic Principle laid: The case emphasized that bail is a rule and jail an exception, rooted in the
fundamental right to personal liberty under Article 21 of the Constitution. Bail should be granted
unless there are strong reasons to believe that the accused will abscond or interfere with the course
of justice.

Facts of the Case/Proposition: The petitioners had been acquitted in a trial but were facing
an appeal against their acquittal. They sought bail during the pendency of the appeal, arguing that
they had shown good conduct while on bail previously and posed no threat to public peace.

Judgement: The Supreme Court emphasized the importance of bail as a safeguard to personal
liberty, rooted in constitutional principles. Despite serious charges, the Court noted the applicants'
satisfactory conduct while previously on bail, without endangering public peace. Acknowledging
the potential injustice of prolonged pre-trial detention, the Court granted bail under specific
conditions, including restrictions on their movements within their village and periodic reporting to
the police. This decision underscored the need for judicial discretion guided by fairness and societal
welfare, balancing the rights of the accused with public interest.

3.Case Title: Niranjan Singh and Ors. Vs. Prabhakar Rajaram Kharote and Ors.

Equivalent Citation: AIR1980SC785, MANU/SC/0182/1980, (1980)2SCC559,

(1980)SCC(Cri)508, [1980]3SCR15

Basic Principle Laid:

The judgment emphasized the interpretation of "custody" under Section 439 of the Code of
Criminal Procedure, 1973 (CrPC) and upheld that physical presence before the court, coupled with
submission to its jurisdiction and orders, constitutes being "in custody" for the purposes of seeking
bail.

Facts of the Case:

The case involved two Sub-Inspectors and eight Constables from the Ahmednagar City Police
Station who were accused of murder and other serious offences under IPC Sections 302, 341, 395,
404 read with Sections 34 and 120B. The complaint alleged that the accused police personnel
conspired to intercept and kill the complainant's brother during an incident. Despite the gravity of
the charges, the accused sought bail which was initially granted by the Sessions Court and later
upheld by the High Court, subject to additional conditions.

Judgment:

The Court, upheld the decisions of the lower courts regarding bail. The judgment emphasized the
principle that custody for the purpose of bail under Section 439 CrPC includes physical control or
physical presence of the accused in court, along with submission to the court's jurisdiction and
orders. The Court rejected the argument that the accused must be in police custody to seek bail,
stating that surrendering before the Sessions Court suffices to establish custody. The judgment also
critiqued the conduct of the police accused, cautioning against potential intimidation of witnesses
and stressing the importance of impartial judicial scrutiny in such cases. It highlighted the
responsibility of law enforcement agencies to uphold justice and the rule of law, ensuring that police
officers accused of serious crimes do not abuse their freedom pending trial. The Court directed that
a copy of the judgment be sent to the Home Ministry for appropriate action to prevent recurrence of
such incidents.

4. Case Title: Sanjay Chandra vs. CBI

Equivalent Citations:

AIR 2012 SC 830, MANU/SC/1375/2011, (2012) 1 SCC 40, (2012) 2 SCC (LS) 397
Basic Principle laid:

The right to bail is not to be denied merely because of community sentiments. The primary
purposes of bail are to relieve the accused of imprisonment pending trial, to relieve the State of the
burden of keeping the accused, and to ensure the accused's presence in court when required

Facts of the Case/Proposition:

Sanjay Chandra and several others were accused in the 2G Spectrum Scam, facing charges under
IPC Sections 420-B, 468, 471, and 109, as well as under the Prevention of Corruption Act, 1988.
The allegations involved deep-rooted planning resulting in significant financial losses to the state
exchequer. The accused had applied for bail, which was denied by the trial court and later by the
High Court. The grounds for denial included the seriousness of the charges and the risk of the
accused tampering with witnesses.

Judgement
The Supreme Court of India reiterated that the primary purpose of bail is to ensure the presence of
the accused during trial and not to punish them in advance. It emphasized the constitutional right to
speedy trial under Article 21. The Court balanced the seriousness of the allegations with the right to
personal liberty and observed that prolonged pre-trial detention violates fundamental rights.
Considering the completion of investigation and filing of charge sheets, the Court found no
compelling reasons to deny bail. It ordered the release of the appellants on bail, subject to
conditions ensuring their cooperation with trial proceedings and preventing interference with
witnesses. The judgment underscored that bail should not be denied solely based on the seriousness
of the charges or community sentiment against the accused, reaffirming established legal principles
regarding bail in criminal cases.

5. Case Title: Sushila Aggarwal and Ors. Vs. State (NCT of Delhi) and Ors.

Equivalent Citations:

MANU/SC/0561/2018, (2018) 7 SCC 731, [2018] 6 SCR 825

Basic Principle Laid:

The Supreme Court discussed the duration of anticipatory bail under Section 438 of the CrPC,
affirming that it should ordinarily continue until the trial concludes, following the principles laid
down in earlier judgments like Gurbaksh Singh Sibbia v. State of Punjab.

Facts of the Case/Proposition:

The case revolved around the interpretation of Section 438 of the CrPC concerning anticipatory
bail. The Court examined divergent views on whether anticipatory bail should have a fixed duration
or continue until trial. It highlighted conflicting judgments and the need for clarity on the duration
of such bail.

Judgment:

The Court held that anticipatory bail granted under Section 438 CrPC should ordinarily continue till
the trial of the case. It rejected the view that anticipatory bail should have a limited duration,
emphasizing that such bail should not be time-bound and must be evaluated based on the merits of
each case. The judgment clarified that the purpose of anticipatory bail is to protect personal liberty
until trial, aligning with constitutional principles and legislative intent.

This decision reaffirmed the principles laid down in Gurbaksh Singh Sibbia v. State of Punjab and
Siddharam Satlingappa Mhetre v. State of Maharashtra, emphasizing that the protection of
anticipatory bail should not be curtailed unless there are exceptional circumstances warranting such
action.

6. Case Title: Satender Kumar Antil Vs. Central Bureau of Investigation and
Ors.

Equivalent Citations:
AIR 2022 SC 3386, MANU/SC/0851/2022, (2022) 10 SCC 51, (2023) 1 SCC (Cri) 1

Basic Principle Laid: The case deals with guidelines for the grant of bail post filing of the final
report, emphasizing categorization of offenses to streamline the bail process.

Facts of the Case/Proposition: The Supreme Court categorized offenses into groups (A to D)
based on severity and set conditions for bail applications post filing of chargesheets. It emphasized
the presumption of innocence and compliance with procedural laws.

Judgement :
The Supreme Court of India addressed the issue of guidelines for granting bail subsequent to the
filing of the final report under Section 170 of the Code of Criminal Procedure, 1973. The Court
categorized offenses into distinct groups (A to D) based on their severity and the nature of charges,
aiming to provide structured guidelines for lower courts in deciding bail applications. Emphasizing
the presumption of innocence, the judgment reiterated that an accused is considered innocent until
proven guilty, placing the burden of proof squarely on the prosecution. Furthermore, the Court
stressed the importance of adhering to procedural mandates, particularly Sections 41 and 41A of the
Code of Criminal Procedure, which deal with arrest and bail procedures. The judgment underscored
that the Code of Criminal Procedure must be interpreted in consonance with the constitutional rights
guaranteed under Articles 21 and 22 of the Constitution of India, safeguarding personal liberty and
due process. It directed state and central governments to ensure compliance with the guidelines laid
down, thereby seeking to streamline the bail process and uphold the rights of the accused within the
framework of law and justice.

Evolution

The evolution of bail provisions in India, as articulated through significant judicial decisions,
reflects a profound commitment to upholding personal liberty while addressing the complexities of
criminal proceedings. The foundational cases such as State of Rajasthan, Jaipur vs. Balchand
(1977) and Gudikanti Narasimhulu vs. Public Prosecutor (1978) established the principle that
bail is the norm and pre-trial detention the exception. This principle is rooted in the constitutional
guarantee of personal freedom under Article 21, ensuring that individuals are not unduly deprived
of their liberty unless absolutely necessary. These cases underscored that bail should be granted
unless there are compelling reasons to believe that the accused may abscond or interfere with the
administration of justice.
The case of Niranjan Singh vs. Prabhakar Rajaram Kharote (1980) further clarified the concept
of "custody" for bail purposes, expanding it beyond physical confinement to include situations
where the accused voluntarily submits to the jurisdiction of the court. This interpretation broadened
the scope for seeking bail, emphasizing judicial discretion in balancing the rights of the accused
with public interest and ensuring fair trial processes.

In Sanjay Chandra vs. CBI (2012) and Sushila Aggarwal vs. State (NCT of Delhi) (2018), the
Supreme Court reiterated the fundamental purpose of bail: to secure the presence of the accused
during trial proceedings while safeguarding their right to liberty. These decisions emphasized that
bail should not be denied solely based on the gravity of the allegations or community sentiment, but
should be decided on merits, considering factors like the accused's conduct, potential for
interference with witnesses, and the need to prevent flight from justice.

Most recently, Satender Kumar Antil vs. CBI (2022) introduced structured guidelines categorizing
offenses to streamline the bail process post-chargesheet. This approach aimed to provide clarity and
consistency in bail decisions, emphasizing the presumption of innocence and adherence to
procedural safeguards outlined in the Code of Criminal Procedure. The judgment highlighted the
importance of maintaining balance between the rights of the accused and the interests of justice,
ensuring that bail provisions serve their intended purpose of upholding constitutional rights while
maintaining law and order.

Together, these judgements represent a progressive evolution in bail provisions in India, guided by
principles of fairness, justice, and the rule of law.