DR RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

Batch of 2025

Criminal Procedure code Project

SEMESTER-V

BAIL PROVISIONS IN INDIA

SUBMITTED TO:
DR. PREM KUMAR GAUTAM
ASSISTANT PROFESSOR
LAW

SUBMITTED BY:
MISHIKA AGARWAL
ENROLMENT NO. – 200101105
SECTION -B
B.A. LL.B.(HONS.)
INTRODUCTION
“The word Bail is derived from the French term baillier which essentially means to ‘give or
deliver’”. The Code of Criminal Procedure (hereinafter referred to as ‘CrPC’) does not
anywhere define Bail. However, the word ‘bail’ is used multiple times in CrPC. It has always
been an essential ingredient of the justice delivery system and, quite substantially, in
consonance with the fundamental principles of the constitution. There are international treaties
and covenants which have paid sufficient heed to the concept of bail. “Bail refers to release
from custody either on personal bond or with sureties”. The Indian law continues to understand
bail “as a right for assertion of freedom against the State imposing restraints.”1

The Supreme Court of India in Vaman Narain Ghiya v. State of Rajasthan 2 commented that,

“Personal liberty is fundamental and can be circumscribed only by some process sanctioned
by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of
the community. A balance is required to be maintained between the personal liberty of the
accused and the investigational right of the police. It must result in minimum interference
with the personal liberty of the accused and the right of the police to investigate the case. It
has to dovetail two conflicting demands, namely, on one hand, the requirements of the society
for being shielded from the hazards of being exposed to the mis-adventures of a person
alleged to have committed a crime; and on the other, the fundamental cannon of criminal
jurisprudence, viz, the presumption of innocence of an accused till he is found guilty.”.

(Emphasis mine)

1 Vaman Narain Ghiya v. State of Rajasthan , (2009) 2 SCC 291

2 (2009) 2 SCC 291
BAIL UNDER CRPC

“Section 2(a) of the CrPC is as follows:3

" 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.

Thus, the offences and bailing provisions are categorised as:

1. Bailable cases
2. Non-bailable cases

Chapter XXXIII of the CrPC deals with “Provisions as to Bail and Bonds”. Sections 436, 436A,
437A to 441A to 446 to 450 of the CrPC comprise Chapter XXXIII.

Both Bailable and Non-bailable cases are defined hereunder with sufficient commentary and
opinion of the author on the impugned:

Bail in Bailable Offences

In bailable offences, bail is granted as a matter of right. The bail can be given by either by the
Inspector who happens to be in-charge of a police station; generally referred to as SHO, or by
a Court on executing a bond with or without sureties, as the granting authority deems fit.

Under Section 436, “when a person arrested is not accused in a non-bailable offence, no
restrictions should be on his release on a bail”4. The man is at liberty to be released under law
and only in default of executing sureties could he be lawfully detained any further. The section
does not provide the magistrate with any discretion in giving bail. It bounds the granting
authority to grant bail and set such person free, with execution of bail bond, of course, at the
earliest possibility. The Supreme Court said categorically in Amar Nath Singh v. State of
Rajasthan5 that the Courts have no jurisdiction of imposing any condition in granting bail under
Section 436. The most they are allowed to do is to demand security. A similar view was taken

3 Section 2(a), The Criminal Procedure Code, 1973

4 Section 436, The Code of Criminal Procedure, 1973
5 Case No. 4644 of 2016
“in Rasiklal v. Kishore s/o Khanchand Wadhwani 6 where the Supreme Court noted that the
right to bail in bailable offences is an absolute right.” If a person wants to roam freely after the
bail, or wants to participate in a political rally, or wants to join a political or social organisation,
she cannot be stopped from doing so. There is no need for the court to hear a complainant or
the public prosecutor in case of bailable offences. The bail is an indefeasible right and must be
respected in the justice delivery system.

Sometimes it so happens that even after the Court sets a person free, the administrative
machinery does not comply and the accused has to rot in jail unlawfully and disgracefully. The
case of Rudal Shah v. State of Biha7r is a glaring example of the apathy of executive machinery
and the feebleness of the judicial dicta. In this case, the accused was released by the Sessions
Court in 1968 but was released from jail 14 years after his formal acquittal in the year 1982.

To remedy the situations like aforesaid, Section 437A was added in CrPC in the year 2005.8
The Section notes that an under-trial prisoner, who is not charged for an offence under Sections
302 and 121-124A of the Indian Penal Code, if has served half of the period of sentence shall
be released on personal bond with or without sureties. However, the Court can continue such
detention if it deems it after consulting the public prosecutor with a order recorded in writing.

Bail in Non-bailable Offences

6 AIR 2009 SC 1341

7 Rudul Sah v State of Bihar, (1983) 4 SCC 141
8 Ins. by Act 25 of 2005, sec 36 (wef 23-6-2006)
In non-bailable cases the accused “maybe” released on bail except in the cases “where the
accused is guilty of offences punishable with death or life imprisonment.”9 This rule does not
apply to a person under sixteen years of age, women and a sick person. Section 437 gives such
powers “to the Courts or a Police Officer to release an accused on bail in non-bail offences.”
The Court must look at the nature and seriousness of the offence, character of the evidence,
circumstances peculiar to the case, and others similar apprehensions in the mind of the Court. 10
The power of court is discretionary but still cannot be exercised arbitrarily. In Sanjay Chandra
v. CBI11, the apex court held the following:

“In bail applications, generally, it has been laid down from the earliest times that the object of
bail is to secure the appearance of the accused person at his trial by reasonable amount of
bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be
considered a punishment, unless it can be required to ensure that an accused person will stand
his trial when called upon. The Courts owe more than verbal respect to the principle that
punishment begins after conviction, and that every man is deemed to be innocent until duly
tried and duly found guilty. From the earliest times, it was appreciated that detention in custody
pending completion of trial could be a cause of great hard-ship. From time-to-time, necessity
demands that some un-convicted persons should be held in custody pending trial to secure their
attendance at the trial but in such case, ‘necessity’ is the operative test. In this country, it would
be quite contrary to the concept of personal liberty enshrined in the Constitution that a person
should not be punished in respect of any matter, upon which, he has not been convicted or that
in any circumstances, he should not be deprived of his liberty upon only the belief that he will
tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart
from the question of prevention being the object of a refusal of a bail, one must not lose sight
of the fact that any imprisonment before conviction has a substantial punitive content and it
would be improper for any Court to refuse bail as a mark of disapproval of former conduct
whether the accused has been convicted for it or not or to refuse bail to an unconvicted person
for the purpose of giving him a taste of imprisonment as a lesion.”

(Emphasis mine)

9 Section 437, The Code of Criminal Procedure, 1973

10 K D Gaur, Textbook on The Code of Criminal Procedure, 2nd ed (2019)
11 AIR 2012 SC 830
It has also been established, through the decisions in CBI v. Amarmani Tripathi12 and State of
Maharashtra v. Dhanendra Shriram Bhurle13, that in cases where the accused was a party to
the criminal conspiracy and sufficient material has been placed before the Court by the
prosecution pertaining to the same, the High Courts are not justified in granting bail to the
accused.

According to Section 439 of the CrPC, the High Court and the Sessions Court is bestowed with
some special powers to grant bail. According to Section 439(1) of the Criminal Procedure
Code, a High Court or Session Court may direct14-

(a) “That any person accused of nay offence and in custody be released on bail, and if
offence is of such a nature specified in sub-section (3) of Section 437, may impose any
condition which it considers necessary for the purposes mentioned in that sub-
section”;
(b) “That any condition imposed by a Magistrate when releasing any person on bail be set
aside or modified.”

The High Court or Sessions Court before granting bail has to give a notice to the prosecutor,
except in cases where such a notice does not seem practicable.

According to the second clause of the section above, the High Court and Sessions Court can
modify or quash the condition on bail given by the Magistrate under Sec. 439(2) and order the
accused to commit to custody. The similar provisions on cancellation of bail are also to be
found under Sec. 437 (5).

Anticipatory Bail

12 (2005) 8 SCC 21
13 (2009) 11 SCC 541
14 Section 439, The Code of Criminal Procedure, 1973.
The evolution of law over a century saw the incipient of “anticipatory bail”, which though was
absent in the Criminal Procedure Code of 1898, had found its way in the Criminal Procedure
Code of 1973. In the 41st law report of the law commission, it was noted that “the necessity for
granting anticipatory bail arises because of some influential persons trying to implicate their
rivals in false cases for the purpose of disgracing them or…..for getting them detained in jail
for years”.15

Accordingly, the CrPC under Section 438 provided for anticipatory bail. The section runs as
follows:

S 438. “Where any person has reason to believe that he may be arrested on accusation of having
committed a non-bailable offence, he may apply to the High Court or the Court of Session for
a direction under this section that in the event of such arrest he shall be released on bail; and
that Court may, after taking into consideration, inter alia, the following factors, namely:—

(i) the nature and gravity of the accusation;

(ii) (ii) the antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect of any
cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested,

either reject the application forthwith or issue an interim order for the grant of anticipatory
bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not
passed any interim order under this sub-section or has rejected the application for grant of
anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without
warrant the applicant on the basis of the accusation apprehended in such application.” 16

Therefore when a person has a reason to believe that he may be arrested on accusation of having
committed a non-bailable offence, he can apply to the High Court or Sessions Court with a
pleading for anticipatory bail. Before considering any such application the court shall look at

15Law Commission of India, 41st Report, 24 Sep, 1969

16 Section 438, The Code of Criminal Procdeure, 1973
the gravity and seriousness of the accusation, previous conduct or antecedents of the accused,
the possibility of him flow from the jurisdiction, and the manifest object of the accusation.

If a person is declared an absconder under Section 82 of the CrPC, the anticipatory bail would
not be given to such person, and if the bail had already been give, the same shall be quashed.

The Supreme Court in Gurbaksh Singh Sibba v. State of Punjab17 , held that “the difference
between ordinary bail and anticipatory bail is that while former is granted after the arrest and
when the accused is in custody, the latter is granted in anticipation of the arrest and no question
of custody ever comes up as the person is immune from arrest effectively.”

BAIL AS A MATTER OF LIFE AND LIBERTY

Under Criminal law, during investigation an accused is arrested to ensure his cooperation with
the police. This entails his availability for investigative purposes, safety and security of
witnesses, safeguarding the evidences, and honest participation in trial. During investigation, a

17 AIR 1980 SC 1632

person is kept in custody with these objectives and it must not, in any case, be counted as an
infliction of any punishment on the accused. Such person, on an assurance from him of his due
cooperation with the administrative and judicial machinery, can be released if deemed fit. The
object of bail is neither punitive nor preventative.18 The object of bail is to secure the
appearance of the accused at the trial and for the same, he is generally required to give monetary
and allied bail bonds.

Accusation should never be construed as an depravation of liberty as it would amount to

punishment. Subjecting someone to depravation of liberty only on the basis of accusations
cannot be allowed in a society governed by rule of law. The courts are required to pay more
than verbal respect to the principle that punishment begins after conviction, and that every
person is deemed innocent until duly tried and found guilty. It has always been an established
principle of criminal jurisprudence that after assessing the accused person’s behaviour,
normally the bail should be granted.

The only customary criterion to declination of bail is when it appears that the accused may
show improper behaviour and cause problems in criminal justice dispensing. In bail
jurisprudence, there is always a presumption of innocence in favour of the alleged accused.

18 Pradeep Kumar Singh, Bail in Socio-Economic Crimes and Criminal Justice in India, 6 Athens J.L. 209 (2020).
CONCLUSION

Detention of a person may also amount “to the depravation of his fundamental right to life and
liberty under Article 21 of the constitution”. Therefore, such depravation must be resorted to
only in exceptional circumstances, like when person’s appearance is doubtful and not possible
according to the procedure established by law. After the Supreme Court’s decision in Mankea
Gandhi v. Union of India19, that procedure must be fair and reasonable.

Bailing provisions, as discussed above, have gone tremendous reformation in the due course
of the justice delivery system. The Courts’ interpretation, along with additional emphasis on
the human rights, life and liberty have played a crucial role in defining value of bail in the
contemporary milieu. The developments discussed above harbinger us to a new dimension of
criminal law jurisprudence where bail is inextricably and incontrovertibly the most important
facet of social life of an individual.

19 AIR 1978 SC 597