The Code of Criminal Procedure has well organized provisions of law relating to bail. Sections 436 to 439 deals with bail while s.167(2) deals with the default bail. These provisions bring a balance to the personal liberty of a person who is accused of an offence.

Even though the word ‘bail’ is used several times in several chapters of CrPC, there is no specific definition to it. But the judicial dictionary of Wharton’s Lexicon and Stroud defines bail as:
“the setting free of the defendant by releasing him from the custody of law and entrusting him to the custody of his sureties who are liable to produce him to appear for his trial at a specific date and time.”

The definition of Bail in Black Law’s Dictionary is:
“procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.”

To be more understanding, the bail is a form of surety. A person can be released with a surety of an amount which is nowhere determined previously. So, the monetary assurance is totally at the discretion of the court. The person can take recognizance with or without any surety. But, the discretion of the bail grant or refusal lies on the court(1). Normally, the bail applications would take time. In 2017, the Supreme Court directed that the disposal of such applications shall be made within a week of it (2).

Every person arrested has the right to be released on bail respective of his offence. Section 50 of CrPC states the right to be informed on the grounds of arrest and the right to bail. This section sets down the obligation of every police officer to be followed, when he arrests a person without warrant. It is his duty to –
● Disclose the reasons and grounds for which the arrest is made.
● Disclose that the person arrested is entitled for bail release
● Disclose that the sureties might be arranged on his behalf.

To whom bail cannot be granted?
A person who does not oblige towards the investigation and who has been declared absconder, cannot be granted bail. A person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled to the relief of anticipatory bail.(3)

The bail is broadly categorized into three:
● bail in bailable offences;
● bail in non-bailable offences; and
● anticipatory bail.
The offences are categorized into bailable and non-bailable offences.

Bail in bailable offence
A bailable offence is defined in s.2(a) and it states that whatever offences are listed in First Schedule of the Code are bailable offences. A bail is an implied right for accused in a bailable offence. Since it is a matter of right, there is no question of discretion. The right of bail is absolute and not surpassable as bounded by s.436 of CrPC(4). “A man is presumed to be innocent till his guilt is proved to the hilt. Merely because an individual is involved in a criminal case, he is not denude of his statutory rights provided under Section 436 Cr.P.C.(5)”

As for the concept of bond, the accused person can be released on bail with or without surety only after applying certain terms and conditions like –
● a person on bail have no permission to leave the territorial jurisdiction unless there is a permission from the court or from the concerned authority/police officer
● mark his presence whenever required
● no tampering of evidence
The bail can be refused if there is violation of any of these conditions.

Bail in non-bailable offence
Non-Bailable offence is defined in s.2(a) as any other offence other than bailable offence. Section 437 deals with the bail in non-bailable offences. Here, Bail is not a matter of right and it is upto the discretion of the court. There are certain circumstances in which the bail is provided-
● When the accused is under the age of sixteen
● sick
● a woman

Also, if the person is believed to be guilty for an offence that is punishable with death or life imprisonment, then such accused shall not be granted bail irrespective of the age, sickness and gender as mentioned above.

In case of an anticipatory bail, the application is made before the High Court or Sessions Court. This is dealt in s.438 of the Code, which states the direction to grant bail to a person apprehending arrest. Therefore, The person released shall follow the directions like not leaving the country without prior permission of the Court; shall not induce or threaten any of the person acquainted with the facts of the case; shall present to the investigation when required.

Section 439 has laid down the special powers of the High Court and Court of Sessions regarding the grant of bail. There was this time when the HC had the power only to grant or refuse the bail, but not ordering or directing the arrests and custody of an accused person. This view changed in Sudeep Kumar Bafna v. State of Maharashtra(6). It is held that:
“Some poignant particulars of Section 437 CrPC may be pinpointed. As observed in Gurcharan Singh vs State (1978) 1 SCC 118, there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts.

The cancellation of bail is dealt in section 439(2) of the Code of Criminal Procedure. The court can only cancel the bail if there is any abuse of bail order. Most of the factors that are considered to be abuse of bail are: when the person on bail interfere with the justice; if the bail is misused; there is an abuse of the concession given to the person on bail or the accused; if the Court finds that the accused has the possibility to abscond and tamper the evidence or coerce the witnesses who are familiar with the facts of the case. The court cannot tolerate its disrespect and if a person on bail wantedly curb the course of justice then the court cancels the bail on this ground.

Factors to be considered while granting the bail
Prasanta Kumar Sarkar versus Ashish Chatterjee(7) the two bench judge laid down the factors to be taken into consideration while an application for bail is made:
“(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.”

Also, while setting aside the order of grant of bail there are certain things that have to be tested. And referring to the para 16 of the case, it is observed by the court in Mahipal versus Rajesh Kumar allies Polia(8), it is observed that:
“The correctness of order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail.. The test is whether the order granting bail is perverse, illegal or unjustified.”

The same case has also outlined the views that governs the setting aside of the bail and says that an appellate court is thus required to consider whether the order granting bail suffers from non-application of mind or is not borne out from a prima facie view of the evidence on record.

A bail granted by the High Court is challenged before the Supreme Court of India and the apex court has also disapproved the manner of which the bail is granted. The court observed that the High Court has granted bail without discussing the evidence in detail and the consideration of the facts of the case; the nature of the allegations; gravity of offences and attributed to the accused.(9)

While granting the bail on its jurisdiction, the application of mind and the indication of the reasons shall be required. Considering the submissions made by the accused and the appellant, the court has nothing to do but analyse the solutions that are adversary. The court pointed out certain aspects that had failed to be noted by the High Court. The aspects are stated below(10):
● The High Court has failed to elaborate the seriousness of the nature of offence. As decided in Ram Govind Upadhyay versus Sudharshan Singh(11) The nature of crime is contemplated as “one of the basic considerations” for granting or turning down the bail.
● The principles governing the base must be pondered in order to exercise its discretionary power and the factors have been discussed earlier in the topic to be considered while making an application for bail.
● As held in Neeru Yadav v. State of Uttar Pradesh(12), the uniformity or parity principle has to be applied in a manner that shall not be “capricious” and the circumstances shall be considered in total.
● The HC shall probe into the criminal background of the accused as held in Ash Mohammad versus Shivraj Singh(13).
Since granting of bail is a matter of judicial discretion, the court is entrusted to act in a judicious manner. However, it also interests the liberty of the accused, the state and the victims of the agitated crime. The court also stated that the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail.

1. Sanjay Chandra v CBI, 1 SCC 40 (2012)
2. Aasu v State of Rajasthan
3. Lavesh v State (NCT of Delhi), 8 SCC 730 (2012)
4. Rasiklal v. Kishore Wadhwani, AIR 2009 SC 1341
5. Deepak Khosla v. State of NCT of Delhi and Others, Crl MC 663 of 2017
6. 2 KLT 809 (2014)
7. 14 SCC 496 (2010)
8. 2 SCC 118 (2020)
9. Ramesh Bhavan Rathod v Vishanbhai Hirabhai Makwana Makwana (Koli) and Another, LL 2021 SC 221
10. Ibid
11. 3 SCC 598 (2002)
12. 16 SCC 508 (2014)
13. 9 SCC 446 (2012)

1. Ms. Roohi Babu, B.SC., B.L., (Hons), Advocate practicing at Madras High Court, with 5 years of experience in IPR and Family matters.
2. B. Smruthi, 4th Year student of BA, LLB (Hons) at Saveetha School of Law, SIMATS, Chennai.


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