BAIL
Comprehensive Study Notes
Dr. Dhananjay Kumar Mishra
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 | Criminal Procedure Law
1. Concept and Definition of Bail
1.1 Statutory Definition
The term 'Bail' was not defined under the earlier Code of Criminal Procedure (CrPC). However, it has now been
formally defined under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Section 2(1)(b) of the BNSS defines bail as:
"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 bail bond."
1.2 Elements of Bail (Breakdown)
The definition of bail can be broken into the following essential elements:
• Release of a person accused of an offence, or suspected of the commission of an offence.
• Release from the custody of law.
• Upon certain conditions imposed by an officer or Court.
• On execution by such a person of a bond or bail bond.
2. Bail Bond, Bond, Surety and Security
2.1 Bail Bond
Section 2(1)(d) of BNSS provides that 'Bail Bond' means an undertaking for release with surety.
It requires a third party (surety) to stand guarantee for the accused's appearance before court.
2.2 Bond (Personal Bond)
Section 2(1)(e) of BNSS provides that 'Bond' means a personal bond or an undertaking for release without
surety.
The accused himself gives a written undertaking to appear before the court and comply with all conditions — no
third party is needed.
Illustration — Personal Bond:
Rahul is accused of a minor public nuisance. The Magistrate finds the offence is not serious. Instead of asking for
a surety, the court allows Rahul to sign a personal bond of ₹10,000. Rahul gives a written undertaking to appear
on every date of hearing. He is released from custody. If Rahul fails to appear, the ₹10,000 may be forfeited and
the court may take action against him.
2.3 Surety
• A surety is a person who undertakes responsibility to ensure the accused complies with bail conditions
and appears before court.
• It is a personal guarantee given by another individual.
• The surety signs a Surety Bond undertaking that the accused will appear before the court.
• If the accused fails to appear or violates bail conditions, the surety may have to forfeit the bond amount.
• The court may require one or more sureties depending on the seriousness of the offence.
2.4 Security
• Security refers to a monetary or property guarantee deposited with the court to ensure compliance with
bail conditions.
• It is a financial assurance — not necessarily a personal guarantee.
• The accused or another person may deposit money, property documents, or other valuables as security.
• If the accused violates bail conditions, the court may forfeit the security amount or property.
• Example: Court may grant bail on condition that the accused deposits ₹50,000 as cash security or
provides property as security.
2.5 Difference Between Surety and Security
SURETY SECURITY
A person who guarantees the accused's Money or property deposited with the court as
appearance. assurance.
Personal guarantee by a third party. Financial or property guarantee — impersonal.
Surety fills an undertaking in the Surety Bond. Provided by the accused himself (Cash, Property,
Valuables).
Surety becomes personally liable to pay the bond Deposited amount/property may be forfeited on
amount. default.
3. Conditions of Bail
Upon granting bail, the court may impose conditions to ensure proper conduct of the accused and to secure
their presence during trial. Common conditions include:
• Appearance Before Court — The accused must appear before the court on all dates of hearing as
directed.
• Non-Tampering with Evidence — The accused shall not tamper with prosecution evidence or attempt to
influence witnesses.
• Restriction on Travel — The accused may be directed not to leave the court's jurisdiction or the country
without prior permission.
• Co-operation with Investigation — The accused must cooperate with the investigation and appear
before the investigating officer when required.
• No Commission of Similar Offence — The accused shall not commit any offence similar to the one for
which they are accused.
• Submission of Passport — The court may direct the accused to deposit their passport to prevent
absconding.
• Regular Reporting — The accused may be required to periodically report to the police station or
investigating authority.
• Providing Address and Contact Details — The accused must inform the court or investigating officer of
their residence and any change in address.
• Other Conditions in the Interest of Justice — The court may impose any other reasonable condition
necessary to ensure a fair trial and presence of the accused.
4. Types of Bail
Type Description
Regular Bail Granted to a person who has already been arrested and is in police or judicial
custody. The most common form of bail.
Anticipatory Bail A preventive relief granted BEFORE arrest is made. Ensures that if the person is
(Section 482 BNSS) arrested, they must be immediately released on bail. Used to prevent malicious
or false arrests, especially for non-bailable offences.
Interim Bail Temporary relief granted while a higher application (such as anticipatory bail) is
being processed. Protects the accused from arrest during the waiting period
between filing and hearing of the main application.
Default Bail Arises from police failure to file a charge sheet within the statutory period (60 or
(Statutory Bail) 90 days, depending on the offence). The accused acquires an indefeasible right
to bail, regardless of the seriousness of the crime.
5. Anticipatory Bail (Section 482 BNSS)
5.1 Meaning
The term 'anticipatory bail' has not been defined in BNSS. It is bail granted in anticipation of arrest. When a
court grants anticipatory bail, it means the person will NOT stay in police custody if they are arrested — as soon
as the police arrest them, they must release the person on bail immediately.
📌 The anticipatory bail order starts working only AFTER the arrest happens — not before.
5.2 Who Can Grant? Section 482
• The High Court can grant anticipatory bail.
• The Court of Session can grant anticipatory bail.
• A Magistrate does NOT have power to grant anticipatory bail.
When any person has reason to believe that they may be arrested on an accusation of having committed a non-
bailable offence, they may apply to the High Court or Court of Session for a direction under Section 482. The
court may, if it thinks fit, direct that in the event of such arrest, the person shall be released on bail.
⚖ Union of India v. Padam Narain, (2008) 13 SCC 305
Established that anticipatory bail operates on the principle that the bail order is granted in anticipation of
arrest — the protection kicks in at the moment of arrest.
⚖ Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632
The Supreme Court held: (1) The applicant must show 'reason to believe' they may be arrested — founded
on reasonable grounds, not vague apprehension. (2) The anticipation of arrest must be in respect of a
non-bailable offence. (3) It is immaterial whether the offence is cognizable or non-cognizable. (4) It is also
irrelevant whether the offence is under BNS or any other law.
5.3 Conditions That Can Be Imposed (Section 482(2))
The court may include conditions as it thinks fit. Common conditions include:
• The person shall make himself available for interrogation by a police officer as and when required.
• The person shall not directly or indirectly make any inducement, threat, or promise to any person
acquainted with the facts of the case so as to dissuade them from disclosing facts to the court or police.
• The person shall not leave India without the previous permission of the court.
• Such other conditions as may be imposed under Section 480(3).
5.4 Principles — Gurubaksh Singh Sibba Case
⚖ Gurubaksh Singh Sibba v. State of Punjab, (1980) 2 SCC 565
The Supreme Court laid down foundational principles for anticipatory bail: (1) Registration of an FIR is
NOT a condition precedent to exercise the power. (2) An interim order can be passed without notice to
the Public Prosecutor, but before passing the FINAL order, notice must be given. (3) An order under this
provision will NOT affect the right of police to conduct investigation.
5.5 Anticipatory Bail Cannot Be a Blanket Order
The order of anticipatory bail should NOT be a 'blanket order'. It should not enable the accused to commit
further offences and claim protection from arrest. It must be confined to the specific offence or incident for
which the apprehension of arrest is sought. It cannot operate in respect of future incidents.
⚖ Prathvi Raj Chauhan v. Union of India, (2020) 5 SCC 421
The Supreme Court held that Section 438 CrPC (now Section 482 BNSS) cannot be considered an integral
part of Article 21. Anticipatory bail CANNOT be granted as a matter of right.
6. Bail in Bailable Offences (Section 478 BNSS)
6.1 Nature of Bailable Offences
• Generally less serious crimes (e.g., public nuisance, simple hurt).
• Bail is a RIGHT — not a matter of judicial discretion.
• When a person accused of a bailable offence is arrested without a warrant or brought before a court,
and is ready to furnish bail, the police officer or court MUST release him on bail.
⚖ Rasiklal v. Kishore, (2009) 4 SCC 446
The Supreme Court held that the right to claim bail under Section 436 CrPC (now Section 478 BNSS) is an
ABSOLUTE and INDEFEASIBLE right. In bailable offences, the court has NO discretion in granting bail.
Once the accused is ready to furnish bail, the police officer or court must release him on reasonable
terms.
6.2 Loss of Bail Right — Section 478(2)
Although bail in a bailable offence is a right, the accused may lose this right in the same case if they violate the
terms and conditions of bail.
If a person released on bail fails to comply with conditions (particularly time and place of attendance), the court
may refuse to grant bail when the person appears or is brought before the court again in the same case.
6.3 Special Provision for Indigent Person
The proviso to Section 478(1) BNSS provides: If the accused is an indigent person (cannot afford sureties), the
court or police officer may release him on executing a personal bond WITHOUT sureties, instead of requiring a
bail bond.
📌 If a person is unable to furnish bail within one week of arrest, it may be PRESUMED that they are an
indigent person — Section 478(1) Explanation, BNSS.
7. Bail in Non-Bailable Offences (Sections 480 & 483 BNSS)
7.1 Nature of Non-Bailable Offences
• Serious or heinous crimes (e.g., murder, dowry death, major theft).
• Non-bailable does NOT mean bail is impossible — it means there is NO right to bail.
• Bail is granted at the court's discretion based on the facts of the case.
7.2 Jurisdictional Framework
• Section 480 BNSS — Deals with Magistrate Courts.
• Section 483 BNSS — Deals with Court of Session and High Court.
7.3 When Bail Shall NOT Be Granted — Section 480(1)(i) and (ii)
⚠ The accused shall NOT be released on bail in the following circumstances:
• Section 480(1)(i): If there is reasonable ground for believing that the accused has been guilty of an
offence punishable with death or imprisonment for life.
• Section 480(1)(ii): If the offence is cognizable AND the accused had been previously convicted of an
offence punishable with: (a) death, life imprisonment or imprisonment for 7+ years; OR (b) convicted on
two or more occasions of a cognizable offence punishable with 3+ years but less than 7 years.
⚖ Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280
The Supreme Court held that if the prescribed punishment is imprisonment for life or death, and the
offence is exclusively triable by the Court of Sessions, the Magistrate has NO jurisdiction to grant bail
unless the case is covered by the proviso to Section 437 CrPC (now Section 480 BNSS).
7.4 Special Provisions — Child, Woman, Sick or Infirm Person
• First Proviso to Section 480(1): If a person falling under Section 480(1)(i) or (ii) is a child, woman, or
sick/infirm person, the court MAY direct their release.
• Second Proviso to Section 480(1): The court may direct the person under Section 480(1)(ii) to be
released on bail if it is satisfied that it is just and proper to do so. This is DISCRETIONARY, NOT
mandatory.
7.5 Four Tests for Bail in Non-Bailable Offences
# Test What the Court Considers
Nature of Is the evidence against the accused strong or weak?
1
Accusation
Severity of Is the person facing life imprisonment? If yes, bail is harder to obtain.
2
Punishment
Character of Is this a repeat offender? Past criminal history?
3
Accused
4 Public Interest Will releasing this person cause a threat to society?
7.6 Powers of High Court and Sessions Court — Section 483
Under Section 483, both the High Court and the Sessions Court have superior powers regarding bail. They can:
• Grant bail to an accused person.
• Set conditions for that bail (e.g., staying in the city, surrendering passport).
• Change or cancel any conditions previously set by a lower Magistrate.
📌 Special Rule for Serious Crimes: If a crime is punishable by life imprisonment, the Court must notify the
Public Prosecutor before releasing the person on bail.
8. Cancellation of Bail
8.1 Grounds for Cancellation
If the person released on bail:
• Tries to interfere in the conduct of investigation, inquiry, or trial.
• Tries to violate the conditions of bail.
... then the bail may be cancelled.
8.2 Provision
• Section 480(5) BNSS: Empowers the court which granted bail to cancel it if necessary, and to direct that
the person be arrested and committed to custody.
• Section 483(3) BNSS: Authorises the High Court and Court of Sessions to arrest any person released on
bail and commit them to custody.
8.3 Rejection vs. Cancellation — Key Distinction
⚖ State (Delhi Administration) v. Sanjay Gandhi, (1978) 2 SCC 411
The Supreme Court held: Rejection of bail (when bail is first applied for) is one thing; cancellation of bail
(once granted) is another. It is EASIER to reject a bail in non-bailable cases than to cancel bail once
granted. Cancellation involves reviewing the earlier decision granting bail. It should be sparingly exercised
and only in supervening circumstances.
REJECTION OF BAIL CANCELLATION OF BAIL
When bail is first applied for. After bail has already been granted.
Relatively easier — court just refuses. Harder — court reviews its earlier decision.
No prior order to revisit. Involves supervening circumstances post-grant.
Standard discretion of the court. Should be exercised sparingly.
9. Additional Important Case Laws
9.1 Subsequent Bail Application
⚖ Sharad v. State of Maharashtra (2019)
The Supreme Court held that an accused who withdraws his bail application before the High Court can
subsequently file a fresh bail application before the Sessions Court.
9.2 Bail in Writ Jurisdiction
⚖ Arnab Goswami v. State of Maharashtra, (2020) 14 SCC 12
The Supreme Court held that High Courts can grant bail even in a writ petition under Article 226 in
appropriate cases. The High Court should not foreclose itself from exercising power when a citizen has
been arbitrarily deprived of personal liberty in excess of state power. However, the High Court must
exercise this power with caution and circumspection — this writ jurisdiction is NOT a ready substitute for
recourse to bail under Section 439 CrPC (now Section 483 BNSS).
9.3 Speaking Order — Bail Must Be Reasoned
⚖ Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (2021)
The Supreme Court observed that a bail order must be a reasoned (speaking) order. The court must state
its reasons for granting or refusing bail. The consent of parties cannot remove the High Court's duty to
indicate its reasons for granting or refusing bail.
10. Quick Reference — All Case Laws at a Glance
Case Key Principle
Rasiklal v. Kishore (2009) 4 SCC 446 Bail in bailable offences is an ABSOLUTE and indefeasible right. Court
has no discretion once accused is ready to furnish bail.
Prahlad Singh Bhati v. NCT Delhi Magistrate has NO jurisdiction to grant bail when offence is
(2001) 4 SCC 280 punishable by life/death and exclusively triable by Sessions Court.
Gurubaksh Singh Sibba v. State of FIR not needed for anticipatory bail. Interim order without PP notice
Punjab (1980) 2 SCC 565 allowed. Bail does not affect police investigation.
Naresh Kumar Yadav v. Ravindra 'Reason to believe' must be founded on reasonable grounds, not
Kumar (2008) 1 SCC 632 vague apprehension. Offence need not be under BNS.
Prathvi Raj Chauhan v. Union of India Anticipatory bail is NOT an integral part of Art. 21. Cannot be claimed
(2020) 5 SCC 421 as a matter of right.
Sanjay Gandhi (Delhi Admin.) (1978) 2 Rejection of bail is easier than cancellation. Cancellation must be
SCC 411 based on supervening circumstances.
Arnab Goswami v. State of High Court can grant bail in a writ petition (Art. 226) but must exercise
Maharashtra (2020) 14 SCC 12 power with caution.
Ramesh Bhavan Rathod v. Makwana Bail orders must be reasoned/speaking orders. Parties' consent does
(2021) not excuse the duty to give reasons.
Sharad v. State of Maharashtra Withdrawal of bail application before High Court does not bar filing a
(2019) fresh application before Sessions Court.
Union of India v. Padam Narain Anticipatory bail operates from the moment of arrest.
(2008) 13 SCC 305
11. Quick Reference — Key Sections (BNSS 2023)
Section Subject
S. 2(1)(b) Definition of Bail
S. 2(1)(d) Definition of Bail Bond (release with surety)
S. 2(1)(e) Definition of Bond (personal bond — without surety)
S. 478(1) Bail in bailable offences — absolute right
S. 478(2) Loss of bail right on violation of conditions
S. 480 Bail in non-bailable offences — Magistrate Courts
S. 480(1)(i) No bail: offence punishable with death or life imprisonment
S. 480(1)(ii) No bail: previously convicted of serious cognizable offences
S. 480(5) Cancellation of bail by court that granted it
S. 482 Anticipatory bail — High Court and Sessions Court
S. 482(2) Conditions on anticipatory bail
S. 483 Bail powers of High Court and Sessions Court
S. 483(3) High Court/Sessions Court can cancel bail and commit to custody
— End of Notes —