What is bail in India

Whenever any person is arrested in India, the first

question for which they run to their lawyers is the bail
procedure. In India, Bail is devised as a technique for
effecting a synthesis of two basic concepts of human
rights of the accused person - to enjoy his freedom and
public interest and to produce the accused person in
Court to stand trial.

Bail is a judicial release of an accused person from

custody, on the condition that the accused person will
appear in court at a later date. In India, criminal offenses
are broadly defined as Bailable and Non-Bailable crimes.
It is regulated by the Code of Criminal Procedure (CrPC).
Under the CrPC, bail can be granted to an accused person
either by a police officer or by a judicial magistrate. Bail is
granted to an accused person to secure their presence at
trial, and to protect their liberty while they are awaiting
trial. It is generally granted when the accused can furnish
sufficient sureties (guarantees) that they will appear in
court as required. If the accused is unable to furnish
sufficient sureties, they may be required to remain in
custody until their trial.

The most significant case of Bail in India, Hussainaira

Khatoon v. State of Bihar, raised the question of delayed
Bail and the ambit under Article 21 of the constitution.
Let us take a look at all the different types of Bail that an
accused asked for in India.

Types of Bail in India

There are usually 4 kinds of bail under Indian Penal Code
(CrPC) that an individual may apply based on the stage of
the associated criminal case.

1. Regular Bail (in Bailable and Non-Bailable offenses).

2. Anticipatory Bail.
3. Interim Bail.
4. Default Bail.

Let's take a closer look at all types of Bail.

Regular Bail:

Regular bail can be granted to a person who has already

been arrested and kept in police custody. A person can
file a bail application for regula r bail under Sections 437
and 439 of the CrPC.

Regular bail is divided into two types based on the

offense.

Regular Bail for Bailable Offences

Section 436 of the CrPC deals with the bail procedure in

case of bailable offenses. The accused is entitled to get
Bail as a matter of right. A statutory duty is imposed upon
the Police Officer by the Court to release a person on Bail
if requested. Further, it lays down the maximum period
for which the police can detain an undertrial prisoner. It
states that if during an investigation, the accused has
been detained for a period extending up to 50% of the
maximum period of imprisonment for the said offense, he
shall be released by the Court on his bond with/ without
sureties.

Grounds on which Bail is granted

The following conditions ought to be satisfied by the
accused to proceed with the bail application procedure:

 The accused gets an advantage of doubt within the

commitment of crime (they may be innocent)
 Inquiry of the offense to verify whether they were
involved in the crime is required
 The offense committed is minor, which does not
require imprisonment for ten years, captivity or
death.

Regular Bail for Non-Bailable Offences

Section 437 deals with the powers of the trial court and
the Magistrate in front of whom the police produce the
offender to grant or refuse Bail. However, Bail may be
granted for non-bailable offenses on the following
grounds:

 If the Accused is below/at 16 years of age;

 If the Accused is a woman;
 If the Accused is ill or infirm
 For Habitual Offenders, Bail is granted only for
Special Reasons

Only a police officer, the officer-in-charge, can release the

accused under Section 437 (1). In the bail hearing, the
Magistrate will refuse the bail application if:

 The person is guilty of an offense punishable by

death, imprisonment with life, or imprisonment for
seven years or more;
 Such a person had previously been convicted of an
offense punishable with death, imprisonment with life
or imprisonment for seven years or more or has been
previously convicted on two or more occasions;
  Abatement, or conspiracy to commit, any grave
offense

Certain restrictions are laid down on the accused that are

released on Bail, which includes:

 The accused shall attend under the conditions laid

down in the bond;
 The accused shall not commit any offense similar to
the one he is currently accused/suspected of;
 The accused shall not dissuade or discourage any
individual acquainted with the facts of the case from
testifying before the Court or tampering with any
evidence.

Anticipatory Bail:

Under Section 438 of CrPC, any individual who discerns

that he may be tried for a non-bailable offense can apply
for an anticipatory or advance bail application. The
application shall be made to the High Court or Sessions
Court, where the crime is alleged to be committed. A bail
under this section is Bail before the arrest, and the police
can't arrest an individual if the Court has granted
anticipatory Bail.

According to Sushila Agarwal and others v. State (NCT of

Delhi) and others, the Supreme Court of India clarified
that anticipatory Bail extends to the end of the trial and is
not a fixed duration.

Interim Bail:

As the name suggests, this type of Bail is granted

temporarily. The interim Bail is granted to the accused
before the hearing for a regular or anticipatory Bail grant.
This is primarily because furnishing documents from the
lower courts to the High Court takes time. However, the
interim Bail is concluded during the bail hearing.

Default Bail:

This kind of bail procedure differs from the Bail granted

under the sections mentioned above. Default bail is
granted on the default of the police or investigating
agency to file its report/complaint within the prescribed
period. For an offense where an arrest can be made
without a warrant, section 57 of the CrPC commands that
the police officer shall not detain the accused for more
than 24 hours. If the investigation is not concluded and
the charge sheet is not filed within these 24 hours,
section 167 grants the accused the right to a statutory or
default bail.

Bail Procedure in India

In India, bail is a legal process that allows a person who

has been arrested or detained by the police to be
released from custody, pending the outcome of their trial.
The purpose of bail is to ensure that the accused person
appears in court on the specified date and time and to
minimize the risk of the accused person fleeing or
tampering with evidence. Here is a Procedure to get a
Bail in India.

Step 1 - Application of Bail

To obtain bail, the accused person or their lawyer must

file a bail application with the court. The application
should contain the grounds on which bail is sought, as
well as any relevant information about the accused
person's background, character, and ties to the
community.

Step 2 - Decision of the court

The court will then consider the bail application and

decide whether to grant bail or not. In making this
decision, the court will consider factors such as the
nature and severity of the offense, the likelihood of the
accused person fleeing or tampering with evidence, and
the strength of the prosecution's case.

Step 3 - Bail bond

If bail is granted, the accused person will be released

from custody upon the payment of a sum of money
known as a "bail bond." This bond is intended to serve as
a guarantee that the accused person will appear in court
as required. If the accused person fails to appear in court,
the bond may be forfeited and the accused person may
be re-arrested and brought back into custody.

How is the Bail Amount Calculated?

The Bail amount is fixed depending on the following

conditions:

 The seriousness of the crime, in terms of injury

caused to others.
 The accused's criminal record.
 The possible dangers that the accused might cause
to society.
 The accused's ties to the community, family, and
employment.
While granting Bail for severe offenses, the prisoner is
brought before the judge for a bail hearing. During the
hearing, the judge must weigh the charges and
circumstances for granting Bail to the accused. The Bail
Bondman or the bail agent charges the fee to the
accused and signs the bail bond after the amount is paid.
The bail bond is signed by the accused when granting
Bail. The accused must furnish the following documents
before the Magistrate while applying for bail application:

 Bail Indemnity Contract

 Bail Bond Application Form
 Deposit of money
 Surety Form no. 2 sealed, two passport-size
photographs of surety
 ID Proof, address proof of surety, and financial
statements of surety

Grounds on which Bail can be granted

The following conditions ought to be satisfied by the

accused to proceed with the bail application procedure:

 The accused gets an advantage of doubt within the

commitment of crime (they may be innocent)
 Inquiry of the offense to verify whether they were
involved in the crime is required
 The offense committed is minor, which does not
require imprisonment for ten years, captivity or
death.

Grounds on which Bail can be denied

As we know, Bail is a matter of judicial discretion and

allowance or refusal of Bail depending on the judiciary.
Courts are not bound by law to grant Bail to every
accused. There are certain cases where the Court
believes that granting Bail to the accused can be a
dangerous or wrong example to society.

Generally, anyone arrested for any non-bailable offense

punishable with life imprisonment or death is not
released on Bail. However, an exception is given to
women, children, or infirm people.

Committing any grave offense twice also prevents an

accused person from getting Bail.

The Court also refuses any person who follows the

conditions of Bail Bail.

What is Writs
Writs are orders given by courts to uphold the Fundamental
Rights of people (citizen or alien). Writs are written orders issued
by the Supreme Court or a High Court directing Indian citizens to
pursue constitutional remedies in the event that their basic rights
have been violated.
Writs in Indian Constitution
In accordance with Article 32 of the Indian Constitution, a citizen
of India may petition the Supreme Court of India and the High
Court for constitutional remedies if his or her fundamental rights
have been violated. The Supreme Court has the authority to issue
writs to enforce rights under the same article, whereas the High
Court has the same authority under Article 226. Under
the Constitution of India, the Supreme Court and the High
 Courts can issue the following writs in the interest of the
protection of the Fundamental Rights of Citizens.
Types of Writs
There are five types of Writs in Indian Constitution. The Indian
Supreme Court is the protector of the people’s fundamental rights.
It possesses unique and extensive powers for that. It issues five
different types of writs to enforce citizens’ fundamental rights. The
five types of writs are:
1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo Warranto
Habeas Corpus Writs
Habeas Corpus Writ is issued by the Courts to bring a person in
front of the court. Habeas Corpus Writ protects the Fundamental
Rights of Liberty people against unlawful detention by the state or
private authority. The Latin meaning of Habeas Corpus is ‘to have
the body of’.
The following points must be noted with respect to the Habeas
Corpus Writ:
 The court can issue it against the state or private authority.
 It cannot be issued when
o Detention is ordered by the court itself.
o Detention is lawful, and is for contempt of court or contempt of the
legislature.

Mandamus Writs
Mandamus’ meaning can be translated to ‘We Command’. Thus,
it is an order given by Courts to executive authorities to perform
certain actions to safeguard the Fundamental Rights of people. A
 Mandamus writ can be issued against any public body, tribunal,
corporation, or lower court.
The following points must be noted with respect to the Mandamus
Writ :
 It cannot be issued against private individuals or organizations.
 It cannot be issued to enforce departmental instructions that are
not backed statutorily.
 It cannot be issued against the constitutional office of the
President or the Governor.
Prohibition Writs
Prohibition translates to ‘to forbid’. Prohibition Writs are issued by
the higher courts to the lower courts and the Tribunals when the
higher court feels that the lower courts and the Tribunals are
going beyond their jurisdiction. It is an order forbidding them to
proceed in a particular matter.
The following points must be noted with respect to the Prohibition
Writ :
 It is only issued against the lower courts or the tribunals.
Certiorari Writs
Certiorari can be translated to ‘to be certified or informed’. The
Court issues this writ to lower courts or tribunals to transfer
certain cases pending before them or to quash orders issued by
them in certain cases. This is done when the Supreme Court or
the High Court feels that the lower court or tribunal has gone
beyond its jurisdiction. It is remedial in nature in contrast to
Prohibition Writ, which is only preventive in nature.
The following points must be noted with respect to the Certiorari
Writ :
 It can even be issued against administrative authorities affecting
the Fundamental Rights of people (after the Supreme Court ruling
in 1991).
 It cannot be issued against law-making bodies and private
individuals or organizations.
Quo Warranto Writs
Quo Warranto can be translated to ‘by what authority or warrant’.
Clearly, it is issued by the court to prevent the usurpation of public
offices when it violates the fundamental rights of people. Using
this, a court questions the claim of an individual over a public
office.
The following points must be noted with respect to the Quo
Warranto Writ:
 It can be issued only when public offices are created by statutorily
or under the Constitution.
 It cannot be issued against the ministerial office.
Writs Jurisdiction
Writ Jurisdiction of the Supreme Court or the High Courts upholds
their position as protector of the fundamental rights of people. It
complements the fundamental right to constitutional remedies
under Article 32 of the Indian Constitution. As discussed above,
the courts can issue 5 types of writs to bring this into effect.
Prerogative Writs
Historically, writs were called prerogative writs, as they were
issued by the crown to remedy under extraordinary situations.
Under the modern legal and administrative system, this
terminology is not used.
High Court Writs
The following considerations must be made in relation to High
Court Writs:
 The High Courts can issue writs not only to enforce fundamental
rights but also for other purposes. In this context, they have wider
powers compared to the Supreme court.
 Also, the High Court have discretion in issuing writs compared to
the Supreme court which must issue writs when fundamental
rights are violated.
Writs UPSC
Writs are orders given by courts to uphold the fundamental rights
of people (citizens or aliens). In the Indian Constitution, there are
five types of writs which include Habeas Corpus, Mandamus,
Prohibition, Certiorari and Quo Warranto. Writs can be issued by
the Supreme Court and the High Courts against public executive
bodies and individual, quasi-judicial bodies, judicial bodies, and
private individuals, depending on the type and nature of the writ.

CASE STUDY

Supreme Court of India

Shri Dilip K. Basu [Link] K. ... vs State Of West Bengal & Ors
on 1 August, 1997
Bench: A.S. Anand, K.T. Thomas
PETITIONER:
SHRI DILIP K. BASU [Link] K. JOHARI

Vs.

RESPONDENT:
STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT: 01/08/1997

BENCH:
A.S. ANAND, K.T. THOMAS
ACT:

HEADNOTE:

JUDGMENT:

THE 1ST DAY OF AUGUST, 1997 Present:

Hon'ble Dr. Justice A.S. Anand Hon'ble Mr. Justice K.T. Thomas Dr.
A.M. Singhvi, Additional Solicitor General (A.C.), Ms. Suruchi
Agarwal, Sushil Kumar Jain, Y.P. Dhamija, B. Krishna Prasad, Ms. A.
Subhashini, B.B. Singh, Uma Nath Singh, B.S. Chahar, Ashok Mathur,
Ms. Hemantika Wahi, Ms. Nandini Mukherjee, Kailash Vasdev, C.K.
Sasi Raj Kumar Mehta, Dilip Sinha, K.R. Nagaraja, Ms. S. Janani,
Aruneshwar Gupta, G. Prakash, Ms. Beena Prakash, Shakil Ahmed
Syed, S.N. Jadhav, D.M. Nargolkar, A.S. Pundit, R.B. Misra, Gunture
Prabhakar, Prem Malhotra, M. Veerappa, R.S. Sodhi, J.K. Manhas, V.
Krishnamurthy, D.N. Mukherjee, T. Sridharan, Gopal Singh, D.S.
Mehra, Ms. Kamakshi Singh Mehlwal, V.G. Pragasam and Ms. Kamini
Jaiswal, Advs. with him for the appearing parties.

O R D E R The following Order of the Court was delivered:

WITH WRIT PETITION (CRL) no. 592 OF 1987 O R D E R On

December 18, 1996 in D.K. Basu Versus State of West Bengal (1997 (1)
SCC 416), this court laid down certain basic "requirements" to be
followed in all cases of arrest or detention till legal provisions are made
in that behalf as a measure to prevent custodial violence. The
requirements read as follows.
"1. The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
identification and name clear identification and name tags with their
designations. The particulars of all such police personnel who handle
interrogation of the arrestee must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee shall
prepare a memo of arrest at the time of arrest and such memo shall be
attested by at least one witness, who may either be a member of the
family of the arrestee or a respectable person of the locality from where
the arrest is made. It shall also be countersigned by the arrestee and shall
contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock- up, shall
be entitled to have one friend or relative or other person know to him or
having interest in his welfare being informed, as soon as practicable, that
he has been arrested and is being detained at the particular place, unless
the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be
notified by the police where the next friend or relative of the arrestee
lives outside the district or town through the Legal Aid Organisation in
the District and the police station of the area concerned telegraphically
within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone
informed of his arrest or detention as soon as he is put under arrest or is
detained.
6. An entry must be made in the diary at the place of detention regarding
the arrest of the person which shall also disclose the name of the next
fried of the person who has been informed of the arrest and the names
and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the
time of his arrest and major and minor injuries, if any present on his/her
body, must be recorded at that time. The "Inspection Memo" must be
signed both by the arrestee and the police officer effecting the arrest and
its copy provided to the arrestee and the police officer effecting the
arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained
doctor every 48 hours during his detention in custody by a doctor on the
panel of approved doctors appointed by Director, Health Services of the
State or Union Territory concerned. Director, Health Services should
prepare such a penal for all tehsils and districts as well.
9. Copies of all the documents including the memo of arrest, referred to
above, should be sent to the Illega Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
11. A police control room could be provided at all district and State
headquarters, where information regarding the arrest and the place of
custody of the arrestee shall be communicated by the officer causing the
arrest, within 12 hours of effecting the arrest and at the police control
room it should be displayed on a conspicuous notice board."
This court also opined that failure to comply with the above
requirements, apart from rendering the official concerned liable for
departmental action, would also render him liable to be punished for
contempt of court and the proceedings for contempt of court could be
instituted in any High Court of country, having territorial jurisdiction
over the matter. This Court further observed :
"The requirements mentioned above shall be forwarded to the Director
General of every State/Union Territory and it shall be their obligation to
circulate the same to every police station under their charge and get the
same notified at every police station under their charge and get the same
notified at every police station at a conspicuous place. It would also be
useful and serve larger interest to broadcast the requirements on All
India Radio besides being shown on the national Network of
Doordarshan any by publishing and distributing pamphlets in the local
language containing these requirements for information of the general
public. Creating awareness about the lights of the arrestee would in our
opinion be a step in the right direction to combat the evil of custodial
crime and bring in transparency and accountability. It is hoped and
accountability. It is hoped that thee requirements would help to curb, if
not totally eliminate, the use of a questionable methods during
interrogation and investigation leading to custodial commission of
crimes."
More than seven months have elapsed since the directions were issued.
Through these petitions, Dr. Singhvi, the learned Amicus Curiae, who
had assisted the Court in the main petition, seeks a direction, calling
upon the Director General of Police and the Home Secretary of every
State/union Territory to report to this Curt compliance of the above
directions and the steps taken by the All India Radio and the National
Network of Doordarshan for broadcasting the requirements.

We direct the Registry to send a copy of this application, together with a

copy of this order to respondents 1 to 31 to have the report/reports from
the Director General of Police and the Home Secretary of the concerned
State/Union Territory, sent to this Court regarding the compliance of the
above directions concerning arrestees. The report shall indicate in a
tabular from a to which of the "requirements" has been carried out and in
what manner, as also which are the "requirements" which still remain to
be carried out and the steps being taken for carrying out those.

Report shall also be obtained from the Directors of All India Radio and
Doordarshan regarding broadcasts made.

The notice on respondents 1 to 31, in addition, may also be served

through the standing counsel of the respective State/union Territories in
the Supreme Court. After the reports are received, copies of the same
shall be furnished to the Advocate on Record for Dr. Singhvi, Ms.
Suruchi Agarwal, Advocate.

The reports shall be submitted to this court in the terms, indicated above,
within six weeks from today. The matters shall be put up on board for
monitoring, after seven weeks.