Bail as per Indian Law

This article was submitted by Anjali Dileep from The National University of Advanced Legal Studies, Ernakulam for National Legal Writing Competition,2016.

l The bail, in lay man’s term, means a guarantee or assurance given by a person  arrested to appear before a competent court at a specified time at a specified place. The provisions of law which govern the bail are provided under Chapter XXXIII of  Criminal Procedure Code ( herein after referred to as  CrPc) , which is the premier statute laying down criminal procedure in India. ‘Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver’.[1] The concept of bail can be traced back to 399 B.C, when Plato tried to create a bond for release of Socrates.[2] The modern system of bail evolved from England.[3]


For the purpose of granting bail- CrPc has classified offences into bailable offence and non bailable offence. The distinguishing factor between them is that in the former , bail can be claimed by a person as a matter of right , while in the latter it cannot be claimed as a right. This means that right to bail is absolute in bailable offence and discretionary in non- bailable offence. Section 2 (a) of the CrPc states bailable offence as an offence which is shown as bailable as per shown in First schedule of the CrPc or any other law for the time being in force and  any other offence was termed as non bailable offences. This is not a descriptive definition, in fact , no where in CrPc has the meaning of the bail clearly defined. Some example of non bailable offence are waging  or  attempting or abetting the waging of war against the Government of India, fabricating of false evidence which may lead to an innocent person be convicted of capital punishment, murder. They are usually applicable against crimes which are of more serious nature. When an arrested person, accused of bailable offence, can provide bail, it shall be accepted and he be released from custody.[4] When  a person accused of a non-bailable offence is arrested or detained without warrant, he may be released on bail if the release on bail is not likely to prejudice the investigation or is not likely to result in the person absconding, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.[5] Section 437 (2) states that at any stage of investigation when it appears that there are no reasonable ground for believing that non-bailable offence has been committed, a person accused of such non bailable offence shall be released on bail


The concept of the bail involves two conflicting concerns- an individual’s right to liberty and  his right to be presumed innocent until proven guilty against the society’s interest in maintaining  law, order and security. The custody of a person pending the completion of trial may cause great hardships to that person which may include loss of liberty, livelihood during that period.  The object of keeping an accused person in detention prior to or during the trial is not punishment but (1) to prevent repetition of offence with who is charged (2) to seek the presence of the accused during the trial and (3) to prevent destruction of evidence

The power of granting bail under CrPc is given to both the police as well as court. In Morit Malhotra v State of Rajasthan, [6], an accused who was granted a bail by the police was asked to take bail from the Court. But the Court held that it was not necessary for an accused who had been granted a bail by police , to approach the court again to get a bail.

Bail as a matter of right

Bail can be claimed as a matter of right, if a person is accused of a bailable offence  and willing to give bail, and also by an indigent person unable to security can be released on 7 days from his day of arrest.[7] Bail can also be claimed as a matter of right , if a person served maximum punishment prescribed for the offence which he is accused of  and not accused of offence attracting death sentence.


The principles which a court must take into consideration while granting bail has been considered in the case of Prahlad  Singh Bhati v NCT, Delhi.[8] The Supreme Court in the case laid down that[9]

“The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

Bail Bond and surety

Section 441 of the CrPc deals with bail bond and sureties. The section states that if a person is released on bail or on a personal bond , such person shall execute such money as determined by the police or court and when he is released on bail, he shall attend at such time and place given in the bond.  Where any condition is imposed for the release of a person on bail, the bond shall also contain such condition.[10] A person standing surety to a person released on bond , shall disclose to the court , the number of person to whom he stand surety and other relevant details.[11]  As soon as bail bond has been executed, the person arrested shall be released on bail.

Anticipatory Bail

Section 438 deals with anticipatory bail which allows a person to seek bail in anticipation of an arrest on accusation of having committed a non bailable offence[12]. The provision was incorporated on the recommendation of 41st Law Commission report.  This power can be exercised only by High Court and Court of Session. The High Court or Sessions Court while granting anticipatory bail should take into consideration such as the nature and gravity of the accusation, the antecedent of applicants, possibility of applicant fleeing from justice and whether the accusation has been made with the intention of humiliating the applicant.[13]


Bail is an important procedure in CrPc and there should be judicious exercise of discretion while granting bail in non bailable offences.


[1]  https://section496.blogspot.in/2014/05/a-general-study-on-bail-under-crpc-and.html

[2] Indian System of Bail – Anti Poor

written by: Urvashi Saikumar – Amity Law School  https://www.legalserviceindia.com/articles/bail_poor.htm

[3] ibid

[4] https://cbi.nic.in/aboutus/manuals/Chapter_12.pdf

[5] ibid

[6] 991 Cri. LJ 806 (Raj).

[7] Section 436 of Criminal Procedure Code

[8] (2001) 4 SCC 280

[9] https://commonlaw-sandeep.blogspot.in/2015/01/bail-jurisprudence.html

[10]  Section 441 (2) of Criminal Procedure Code, 1908

[11]  Section 441 A of Criminal Procedure Code, 1908

[12] https://en.wikipedia.org/wiki/Anticipatory_bail#cite_note-CrPC-2

[13]  Section 438 (1)  of CrPc

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