The law governing bail and its granting of thereof is fundamental to the smooth functioning of the criminal justice system. It embodies the principle of innocent until proven guilty, which is one of the core tenets of criminal law framework and, safeguards one fundamental right to liberty. In this article, we will attempt to decode the law governing bail in India and the types of bail available under thereof.

What is Bail?

There is no concrete definition of ‘bail’ provided for under the Indian criminal framework but it rather lays down the procedure for obtaining a bail under the law. The terms bailable and non-bailable offense have been defined under Section 2(a) of Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) as any offense made bailable under Schedule I or bail made available under any law is a bailable offense; any other offense is said to be a non-bailable offense respectively.

The term ‘bail’ was given a judicial interpretation by the Supreme Court in Moti Ram v. State of Madhya Pradesh “as a judicial release from custodia Juris. Bail is granted on one’s own bond, with or without surety, and includes release on recognizance. Bail sometimes referred to as regular bail, is granted during the course of a trial or after the conviction when the sentence is suspended and is usually till the final pronouncement and decision by that Court.”

When we take a look at the first Schedule of the CrPC we find that there is a column for, Sections, Offenses, Punishment – Cognizable or Non-Cognizable, Bailable or Non-Bailable, and, the requisite Court/Forum for trying of offenses committed thereunder. Chapter XXXIII of CrPC deals with Provisions as to Bail and Bonds. Section 436 of CrPC deals with bail for offenses other than a non-bailable offense and Section 437 deals with bail for offenses that are non-bailable.



Bail, under the criminal law, can be broadly classified into three categories:

  • Bail in bailable offences;
  • Bail in non-bailable offences and,
  • Anticipatory bail
  • Bail for Bailable Offenses [Section 436, Code of Criminal Procedure, 1973]

Bail for bailable offenses is dealt with under Section 436 of CrPC, where if a person is arrested for an offense other than a non-bailable offense then he may be brought before the Court and during any stage of proceedings and the court may grant him bail and he can be released on bail. If any such person is indigent, i.e., poor and unable to furnish surety, the court may instead of taking a bail discharge him on executing a bond without sureties. If any such person fails to execute the bond the court may refuse to release him.

  •  Bail for Non-Bailable Offenses [Section 437, Code of Criminal Procedure, 1973]

According to Section 437(1), if someone accused of a non-bailable offense is arrested without a warrant and brought before a court, he may be released on bail but he may not be released if it’s found that he has been guilty of an offense for which the punishment is death sentence or imprisonment, he may neither be released if the offense committed by him is a cognizable offense and he has previously committed an offense that is punishable with life imprisonment or seven-year imprisonment or death. However, this does not extend to children below the age of 16, women, sick or infirm people. He may be released if the court finds releasing him would be just and proper. Every such person shall be given the opportunity to be heard by the public prosecutor.
As per Section 437(2) if the court thinks there are no reasonable grounds for believing that the accused has committed a non-bailable offense and there are reasonable grounds for conducting an inquiry into his guilt shall be released on bail or on the execution of bond without sureties for his appearances with the discretion of the court.

According to Section 437(3) When a person is accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offense, is released on bail under Sub-Section (1) the Court shall impose the conditions—

a. that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

b. that such person shall not commit an offense similar to the offense of which he is accused, or suspected, of the commission of which he is suspected, and

c. that such 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

and may also impose, in the interests of justice, such other conditions as it considers necessary.

The aforementioned provision lays down certain conditions upon the person seeking bail and empowers the Court to impose further conditions in the interest of justice as it may deem fit in the circumstances of the case.
Section 437(4) requires the Court to record in writing the reasons for grant of bail and basis upon which it has satisfied of such reasons. If a person is released on bail and the court finds it necessary to arrest and commit him back to custody the court may do so, under Section 437(5). Under Section 437(6), a case which has jurisdiction before the Magistrate and the trial of non-bailable accused is not concluded within 60 days from the day of taking evidence and where such individual has been remanded in custody during such period, then such person shall be released on bail where the Magistrate shall record the reasons in writing for the non-grant thereof.

As per Section 437(7) if, after the trial of a person accused of a non-bailable offense and before judgment is delivered, the Court believes there are reasonable grounds to believe the accused is not guilty, it shall release the accused, if he is in custody, on the execution of a bond without sureties for his appearance to hear judgment delivered.

  •  Anticipatory Bail [Section 437, Code of Criminal Procedure, 1973]

As per Section 438 if any person believes that he may be arrested for an accusation of a non-bailable offense, he may apply to the High Court or Sessions Court that at in the occurring of such event, the Court may grant the person bail in anticipation thereof. The court can only do so by looking into certain factors like:

  • the nature and gravity of the accusation
  • the antecedents including the applicant’s previous records of offenses
  • possibility of the applicant fleeing from justice
  • where such arrest is for injuring or humiliating the applicant

If the court grants an interim order for anticipatory bail then it shall notify the same within seven (7) days and the same shall be forwarded to the Public Prosecutor and Superintendent of Police with an opportunity to give the Public Prosecutor a reasonable opportunity of being heard when the application will be heard in the court. The presence of the applicant is obligatory during the final hearing and during passing of orders.

  • According to Section 438(2) the court makes certain conditions while granting such interim orders like: 
  • the applicant shall be available during the police interrogation as and when required
  • the applicant shall not threaten or promise any person who is related to the case so as to dissuade him from disclosing the facts
  • the applicant shall not leave India without the permission of the court
  • such other conditions under Section 437(3) if the bail is granted under it.

In the case of Balchand Jain v. State of Madhya Pradesh, the Supreme Court observed that “anticipatory bail means a bail in anticipation of arrest. The expression anticipatory bail is a misnomer inasmuch as it is not as if bail presently granted is in anticipation of arrest. Where a competent court grants anticipatory bail, it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative.”



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