BAIL:

History:
(Bail is a procedure by which a judge or Magistrate sets at liberty one who has been arrested or
imprisoned, upon receipt of security to ensure the released prisoner’s later appearance in court
for further proceedings)
Black’s Law Dictionary: Bail is “to procure the release of a person from legal custody, by
undertaking that he shall appear at the time and place designated and submit himself to the
jurisdiction and judgment of the court”.
When a person is granted bail, he is deemed to be under the custody of the court.
The concept of Bail has a long history in English Common Law. As far as 1689 in the Bill of
Rights, English Parliament held that a bail must be reasonable- A principle, which was later,
incorporated into the American 8th Amendment to the Constitution.
The concept of Bail comes out into the view from the clash between the State’s power to restrict
and deprive the liberty of a man who allegedly have committed a crime and the presumption of
guidelines in his favor.
Medieval England:
The custom grew out of the need to free untied prisoners from disease ridden jails while they
were waiting for the long delayed trials conducted by travelling justices.
Prisoners were bailed or delivered to reputable third parties of their own choice who accepted
responsibility for assuring their appearance at the trial. If the accused did not appear, his bailor
would stand trial in his place.
But this system did not work for a long time as it was too big a punishment for the person who
stood surety for the accused person.
From this grew the modern practice of posting a money bond through a commercial bondsman
who receive a cash premium for his service and usually demands some collateral security as
well.
In the event of non-appearance the bond is forfeited after a grace period of number of days,
during which the bondsman may produce the accused in the court.
The bail is a generic term which means the judicial release from custody, i.e, prevention of
unnecessary deprivation of personal liberty. It signifies a security for the appearance of a
prisoner for his release.
The CrPC, 1973 lays down that norms of granting of bail and bonds in Sections 436 and 450.
But there is no definition of the word ‘bail’ in the Code of the Criminal Procedure, 1973.
The offence is however classified into- bailable and non-bailable.
Section 2(a) of the CrPC, 1973, reads as under:
“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.
The word ‘bail’ is commonly understood- is comprehensive enough to cover release on one’s
own bond, with or without sureties.
The grant, refusal or cancellation of bail, is a judicial act and has to be performed with judicial
care after giving serious consideration to the interest of all parties concerned.
“No person shall be deprived of his life and personal liberty except according to procedure
established by law”
The Article 21- right to life and personal liberty is most important than other rights mentioned in
Articles 19-20 and 22 of the Constitution. The main interpretation of this article infers that when
the bail is denied then the personal liberty of an accused is refused. Hence, when a large number
of bail cases come to the higher court, the court interprets them in the light of Article 21.
Grant of Bail is a RULE:
The Supreme Court of India observed that “grant of bail is a rule and refusal to bail is an
exception”. In State of Rajasthan v. Bal Chand, AIR 1977 SC 2447: (1977)4 SCC 308:(1978) 1
SCR 535, the Supreme Court had observed that “ the normal rule is bail and not jail”. The
judicial discretion in granting bail is neither perverse nor erroneous rather they are based on
relevant considerations supported by the reasons.
Purpose behind Bail:
The principle purpose of bail is to ensure that an accused person will return for trial if he is
released after arrest.
At the pre-trial stage, every accused person is presumed to be innocent until the matter is finally
disposed of by a competent Court. Simply because an alleged person is charged with an alleged
offence, he does not lose his right to protection of life and personal liberty. He has, till the final
disposal of the case against him, the same right as enjoyed by any other citizen under the
Constitution of India, and other provisions of the law of the land.
That is why various High Courts and the Supreme Court of India have held in their judgments
that ”grant of bail is a rule and refusal is an exception”.
The main purpose of granting bail is that the consequence of long detention of the pre-trial
accused persons (who are presumed to be innocent as any other citizen) is very grave. Bail may
be granted to a witness to appear before a court for the purpose of giving evidence or to appeal
before a police officer during investigation.
Hussainara Khatun v. Home Secretary, State of Bihar(AIR 1979 SC 1369): the pre-trial
release on personal bond i.e, without surety should be allowed where the person to be
released on bail is indigent and there is no substantial risk of his absconding.

WHY BAIL SHOULD BE GRANTED:

Grant of bail is a rule and refusal to bail is an exception. Moreover, every accused person is
presumed to be innocent until the final decision of the Court holding him guilty of the
charge/charges made against him. There is no doubt that a person accused of certain charges, if
not released on bail, certainly faces many handicaps to prove his innocence besides carrying a
constant stigma in the society. Therefore, consequences of pre-trial detention are grave and are in
gross violation of Articles 14 and 21 of the Constitution of India and against all the principles of
equity, fair play and natural justice.
The research and study by various agencies have shown that out of two thousand accused
persons released on bail, less than one percent failed to appear before the Court when required.
Moreover, the public exchequer has to bear the cost of maintaining the accused person in jail. All
the accused persons while under detention, have to be provided with all the basic ‘necessities’
and facilities, eg. Food, clothing, shelter, medical treatment etc. on government expense.
Therefore, the accused persons who have deep roots in the society and are not likely to abscond,
should invariably be released on bail by the courts. Further, on release on bail, he would be in a
better position to prove his innocence.
In general, the discretion in granting bail is exercised judicially and not arbitrarily and the court
avoids elaborate documentation of merits as well as the detailed examination of evidence. On the
other hand, the court sees the prima facie of the case and it does not weigh the evidence at the
stage.
Who can stand a Surety and Quantum of the Surety?
Any person who has the capacity, control and competence to produce the accused in case of non-
appearance or to pay the amount of the surety, can be accepted by the Court for the purpose.
There is no specific provision which lays down the exact amount, which the surety is required to
pay, in case the Court decides to grant bail to the accused person. The courts are given discretion
to fix a reasonable amount judiciously.
Whenever cases of unreasonable and arbitrary amounts of surety fixed by the trial Court are
brought to the notice of the higher judiciary including the Supreme Court of India, these courts
after examining the specific case brought before them have not hesitated in laying down the
norms in regard to the quantum of the surety.
The right to be released on bail under Section 436(1) cannot be nullified indirectly by fixing too
high –the amount or bail-bond to be furnished by the person seeking release (Moti Ram v. State
of MP)
Release of Indigent Person on Personal Bond:
CrPC (Amendment) 2005 has in the first proviso to Section 436(1) mentioned specifically the
category of persons who has to be released on personal bond without sureties. The amendment to
Section 436 obligates the court or the police officer to release a person on his own surety if he is
really indigent. If the person thus, released does not turn up in the court he may be punished with
imprisonment for a term, which may extend to one year or with fine or both under S 229A IPC
inserted in 2006.
COMPETENT AUTHORITIES TO GRANT BAIL:
Sections 41, 42, 43 or 151 of the CrPC, 1973, empowers the police to grant bail to persons
arrested without a warrant or under a bailable warrant issued by a court or to appear before the
Court where required.
Sections 436, 437, 438 and 439 of the CrPC, 1973, empowers the Magistrates and Courts to
grant bail to any person charged with a crime.
Section 50(2) makes it obligatory for a police officer arresting such a person to inform him of his
rights to be released on bail. But if the offence is non-bailable that does not mean that the person
accused of such offence shall not be released on bail, but here in such a case bail is not a matter
of right, but only a privilege to be granted at the discretion of the court.
A person accused of a bailable offence has a right to be released on bail.
The concept of bail emerges from the conflict between the police power to restrict liberty of a
man who is alleged to have committed a crime, and presumption of innocence in favor of the
alleged criminal. The Code has not provided any test to determine whether any particular offence
is bailable or non-bailable. It all depends upon whether it has been shown as bailable or non-
bailable in the First Schedule.
The concept of Anticipatory Bail is relevant only for non-bailable offences.
Overview:
Circumstances in which release on bail is mandatory: (Check Kelkar)
Where the arrestee is not accused of a non-bailable offence- arrested or detained without warrant
and he is prepared to give bail- the police officer or the court having custody of such person is
required to release him on bail. Where the investigation is not completed within the time
prescribed
Where no reasonable grounds exist for believing the accused guilty of non-bailable offence-
absence of reasonable ground- if no reasonable ground exist for believing that such person has
committed a non-bailable offence, but that there are sufficient grounds for directing further
inquiry, he shall pending such inquiry release the accused on bail or on the execution of a bond
for appearance.
Where trial before magistrate not concluded within 60 days
Where no reasonable grounds exist for believing the accused guilty after conclusion of trial but
before judgment.
Discretion in granting bail in cases of non-bailable offences:
Discretion in granting bail how to be exercised
No bail in case of offence punishable with death or imprisonment for life
Bail with conditions
Powers of High Court or Sessions Court in granting bail
Anticipatory Bail: S 438-the concept of AB is relevant only for non-bailable offences.
Cancellation of Bail
Powers of Appellate Court in respect of granting bail
General provisions regarding bond of accused and sureties
Bail and Personal Liberty: The basic rule is to release him on bail unless there are circumstances
suggesting the possibility of his fleeing from justice or spoiling/upsetting the course of justice.
When a bail is refused, it is a restriction on personal liberty of the individual guaranteed by Art
21 of the Constitution and therefore such refusal must be rare.
Even persons accused on non-bailable offences are entitled for bail if the court concerned comes
to the conclusion that the prosecution has failed to establish a prima facie case against him and/or
if the Court is satisfied for reasons to be recorded that in spite of the existence of prima facie
case there is a need to release such persons on bail where facts and circumstances require it to do
so [Kalyanchandra Sarkar v. Rajesh Ranjan, AIR 2005 SC 921]
Discretion in granting bail in non-bailable cases:
The circumstances in which granting of bail in respect of cases of non-bailable offences is
mandatory. Granting of bail is essentially discretionary in all cases of non-bailable offences.
“Discretion” when applied to the court of justice, means sound discretion guided by law. Should
be governed by rule, should not be arbitrary, vague and fanciful, but legal and regular.
The discretion to grant bail in cases of non-bailable offences has to be exercised according to
certain rules and principles as laid down by the Code and judicial decisions.
The various aspects where such discretion are to be used are:
Discretion in granting bail how to be exercised- When any person accused of or suspected of the
commission of any cognizable offence, punishment with imprisonment for three years or more
but not less than seven years, is arrested or detained without warrant by an officer in charge of a
police station or appears or is brought before a court, other than the High Court or Sessions
Court, he may be released on bail [S 437(1)]
Law favors allowance of bail which is the rule, and refusal of it is an exception.
While making a decision with regard to grant of bail, the following circumstances are taken into
considerations-
 The enormity of the charge,
 The nature of the accusation,
 The severity of the punishment which the conviction will entail,
 The nature of the evidence in support of the accusation,
 The nature and gravity of the circumstances in which the offence is committed,
 The position and status of the accused with reference to the victim and the witnesses,
 The danger of witnesses being tampered with,
 The likelihood of accused fleeing from justice,
 Probability of the accused committing more offences,
 The protracted nature of the trial,
 Opportunity to the applicant for preparation of his defense and access to his counsel,
 The health, age, sex of the accused person etc.
The courts have, however, been unbiasedly exercising discretion to grant bail.
The court’s discretion has now been restricted to an extent by inserting a proviso to Section
437(1) to the effect that a person who has been accused of offences punishable with death, life
imprisonment or imprisonment for seven years or more shall not be released on bail without
giving an opportunity of hearing to the Public Prosecutor(S 37 of Act 25 of 2005)
Mere fact that an accused person may be required for being identified by witnesses during
investigation, shall not be sufficient ground for refusing bail if the accused is otherwise entitled
to be released on bail and gives an undertaking that he shall comply with such directions as may
be given by the court[2nd proviso to S 437(1)]
The police officer or the court releasing any person in a case of non-bailable offence is required
to record reasons for doing so [S 437(4)]
If a co-accused has been granted bail, an accused cannot be granted bail. Even at the stages of
second or third bail application, the court has to examine whether on facts the case of the
applicant before the court is distinguishable from the other released co-accused and the role
played by the applicant is such that it may disentitle him to bail.
Power of Sessions Court and High Court in matter of granting bail are very wide. Second bail
application should normally be presented before the judge who had rejected the earlier one.
No Bail in case of offence punishable with death or imprisonment for life-
In case of a person under arrest or detention as mentioned in (1) above, such a person shall not to
be released on bail if there appear reasonable grounds to believing that he has been guilty of an
offence punishable with death or imprisonment for life[S437(1)]
The Court may direct that any person under the age of 16years or any woman or any sick or
infirm person accused of such an offence be released on bail. The Court releasing any person on
bail will have to record in writing its reasons for doing so[ S 437(4)]
Bail with conditions-
While granting bail in the above mentioned conditions (1) and (2) the court may impose any
condition which it considers necessary-to ensure that such person shall attend in accordance
with the conditions of the bond executed under Chapter XXXIII (i.e, relating to bail); or – in
order to ensure that such person shall not commit an offence similar to the offence of which he is
accused of or the commission of which he is suspected of; or-that such person shall not directly
or indirectly make any inducement or 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.

Certain other conditions may also be exercised- where the offence is punishable with
imprisonment which may extend to 7yrs or more; or –where the offences are against the state and
affecting human body, or offences against property of the IPC; or where the offence is one of
abetment, conspiracy, or attempt in relation to any such offence.

The conditions should be mentioned in such that prevents escape of the accused or preventing
repetition of offence. Conditions should not be unreasonable.

Powers of High Court or Session’s Court in granting bail-

The powers of a High Court and Session’s Court in granting bail are very wide, even so where
the offence is non-bailable, various considerations will have to be taken into account before the
bail is granted in case of a non-bailable offence.

Although the High Court has concurrent jurisdiction with the Sessions Court to grant bail under
Section 439, it is considered desirable by the High Court that the Lower Courts should first be
moved in the matter.

Only in exceptional or special circumstances an application for bail may be directly made to the
High Court.
The discretion given to the High Court under Section 439 should be exercised keeping in mind
the reasons adduced by the lower court while rejecting or accepting the prayer for bail. This
should be the rule in entertaining application for bail under Section 389 of the Code. Delay in
hearing the appeal, gravity of the offence, sentence imposed and several other factors are taken
into consideration while dealing with applications for bail under Section 389. Section 439- A
High Court is not expected to grant bail for a short period to watch the conduct of the accused.

Pointers Bail in Non-bailable case- Accepting the application for bail in non-bailable offence:
(Read the reading material emailed on this)
 Decided on ratio decidendi of the various cases. Whether or not there is reasonable
ground for believing that the accused has committed an offence with which he is charged.
Bail may also be refused to an accused suspected or believed to have committed a
heinous offence-like murder. The word ‘belief’ used in Section must be on certain
positive aspect- it should not be of the personal belief of the judge but on judicial sense.
 Nature of the crime- if murder, conspiracy against the State the Court will not accept the
application for bail.
 Prevention- prevention of offence- repeated offender if released on bail might commit the
same offence.
 The danger of prosecution being pressurized or tampered with and preparation of false
evidence in defense.
 Length of trial- sometimes the accused has already spent several months in jail although
the trial has not commenced. The accused has right to claim speedy trial, if there is
unreasonable delay he/she can be released on bail.
 The conduct, character, behavior means and the general standing of the accused- may
play some part in grant of bail.
Distinction between S 436 and S 437:
S 436- bail would be granted as a matter of course if the person arrested is willing to furnish bail
whereas, in case of non bailable offence S437 & S 439 – cannot be claimed as a matter of right
and grant of bail or not would depend on facts and circumstances of the case. Unlike S 436-
Conditions may be imposed on S 437.
Powers of Police to grant bail: (Bailable Offences)
In accordance with the powers of the CrPC and certain other Acts, police has powers to grant
bail in the offences generally categorized as bailable offences. But after the challans are filed in
the court, the accused person has to fill in the prescribed bail bond in order to get regular bail
from the court of competence.
Cancellation of Bail- Section 437(5) and Section 439(2)
Release on bail is a privilege and not a right. The power to cancel a bail already lies with the
Court which had granted the bail to the accused and with the Court of Session or the High Court.
The lower court cannot interfere with the order of the superior court. A Court of Session cannot
cancel a bail which has already been granted by the High Court.
It is easier to reject a bail application in a non-bailable case. Cancellation of bail necessarily
involves the review of a decision already made.
CASES: Public Prosecutor v. George Williams, AIR 1951 Mad 1042, the Madras High Court
highlighted five scenarios where a person granted may have the bail cancelled and be
recommitted to jail.
 Where the person is released on bail, during the period of bail, commits the same offence
for which he is being tried or has been convicted, and thereby proves his utter unfitness to
be on bail;
 If he hampers the investigation as will be the case if he, when on bail, he forcibly
prevents the search of places under his control for the corpus delicti or other
incriminating things;
 If he tampers with the evidence, as by intimidating the prosecution witnesses, interfering
with the scene of the offence in order to remove evidence etc.
 If he runs away to a foreign country, or goes underground, or beyond the control of his
sureties; and
 If he commits acts of violence, against the police and the prosecution witnesses.
Surendra Singh v. State of Bihar [1990 CrLJ(Patna)] Bail may be cancelled on the following
grounds-
 When the accused was found tampering with the evidence either during the investigation
or during the trial;
 When the person on bail commits similar offence or any heinous offence during period of
bail;
 When the accused has absconded and trial of the case gets delayed on that account;
 When the offence so committed by the accused has created serious law and order
problem in society and accused has become a hazard;
 If the HC finds that the lower court granting bail has exercised its judicial power
wrongly;
 If the High Court or Sessions Court finds that the lower court granting bail has exercised
its judicial power wrongly;
 If the High Court or Sessions Court finds that the accused has misused the privilege of
bail;
 If the life of the accused itself be in danger.
The grounds for cancellation of bail should be those which arose after the grant of bail and
should be relevant to conduct of the accused on bail.
Dolat Ram v. State of Haryana- if the accused obtained bail by suppression of material facts
the same court or superior court may cancel the bail.
 The grounds for cancellation of bail under Section 437(5) and 439(2), CrPC are identical-
  The accused misuses his liberty by indulging in similar criminal activity;
 Interferes with the course of investigation,
 Attempts to temper with evidence or witnesses,
 Threatens witnesses or indulges in similar activities which would hamper smooth
investigation,
 There is likelihood of him fleeing to another country,
 Becoming unavailable during investigation,
 Attempts to place himself beyond the reach of the surety etc.
 Conduct of the accused important.
 No Magistrate can cancel a bail.
Statutory Bail-
Section 437(6)- if the trial of a person accused of a non-bailable offence is not concluded within
60days from the first date fixed for taking evidence, shall if he is in custody during the whole
period, be released on bail, unless the Magistrate, for some reasons to be recorded, otherwise
directs.
Section 437(7) - if after the conclusion of a trial and before judgment is delivered, the Court is of
the opinion that there are reasonable grounds for delivering that the accused is not guilty, it
releases the accused on the execution by him of a bond for his appearance to hear judgment.
Anticipatory Bail- Section 438 of the Code confers on the High Court and the Court of Session,
the power to grant `anticipatory bail' if the applicant has `reason to believe' that he may be
arrested on accusation of having committed a non-bailable offence. The expression `anticipatory
bail' has not been defined in the Code.
As observed in Balchand Jain v. State of M.P. (1976) 4 SCC 572, `anticipatory bail' means `bail
in anticipation of arrest'. The expression `anticipatory bail' is a misnomer in as much as it is not
as if bail is presently granted by the Court in anticipation of arrest. When 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. The Court went on to
observe that - the power of granting `anticipatory bail' is somewhat extraordinary in
character and it is only in `exceptional cases' where it appears that a person might be falsely
implicated, or a frivolous case might be launched against him, or "there are reasonable grounds
for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his
liberty while on bail" that such power may be exercised. The power being rather unusual in
nature, it is entrusted only to the higher echelons of judicial service, i.e. a Court of Session and
the High Court. Thus, the ambit of power conferred by Section 438 of the Code was held to be
limited.
Historically, the Code of Criminal Procedure, 1898 (old Code) did not contain specific provision
corresponding to Section 438 of the present Code of 1973. Under the old Code, there was a
sharp difference of opinion amongst various High Courts on the question whether a Court had
inherent power to make an order of bail in anticipation of arrest. The preponderance of view,
however, was that it did not have such power. The Law Commission of India considered the
question and vide its 41st Report, recommended introduction of an express provision in this
behalf.
The suggestion of the Law Commission was accepted by the Central Government and in the
Draft Bill of the Code of Criminal Procedure, 1970, Clause 447 conferred an express power on
the High Court and the Court of Session to grant anticipatory bail.
Keeping in view the reports of the Law Commission, Section 438 was inserted in the Code. Sub-
section (1) of Section 438 enacts that when any person has reason to believe that he may be
arrested on an accusation of having committed a non-bailable offence, he may apply to the High
Court or to the Court of Session for a direction that in the event of his arrest he shall be released
on bail, and the Court may, if it thinks fit, direct that in the event of such arrest he shall
be released on bail. Sub-section (2) empowers the High Court or the Court of Session to impose
conditions enumerated therein. Subsection (3) states that if such person is thereafter arrested
without warrant by an officer in charge of a police station on such accusation, he shall be
released on bail.
Ingredients- S438 must be given in full effect- applicant has reason to believe that he may be
arrested for non-bailable offence- a ‘blanket order’ of Anticipatory Bail should not generally be
passed- the facts must be clear and not vague.
No blanket order of bail should be passed and the Court which grants anticipatory bail must take
care to specify the offence or the offences in respect of which alone the order will be effective.
While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed
under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even
be that in the event of the police making out a case of a likely discovery under Section 27 of the
Evidence Act, the person released on bail shall be liable to be taken in police custody for
facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a
weapon to stifle prompt investigation into offences which could not possibly be predicated when
the order was passed.
An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not
been arrested.
The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest,
the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to
be released on bail in respect of the offence or offences for which he is arrested.
The Constitution Bench was called upon to consider correctness or otherwise of principles
laid down by the Full Bench of High Court of Punjab & Haryana in Gurbaksh Singh Sibbia Vs.
State of Punjab (1980)(SC). The Full Bench of the High Court summarized the law relating to
anticipatory bail as reflected in Section 438 of the Code and laid down eight principles which
were to be kept in view while exercising discretionary power to grant anticipatory bail.
The guidelines are-
 1. Application of own mind- if an application for anticipatory bail is made to the High Court
or the Court of Sessions it must apply its own mind to the question and decide whether a
case has been made out for granting such relief. It cannot leave the question for the
decision of the Magistrate concerned under S 437 of the Code.
2. Role of FIR- Filing of FIR is not a condition precedent to the exercise of the power under
S 438.
3. Anticipatory bail- can be filed even after an FIR is filed, so long as the applicant has not
been arrested.
4. The provisions of Section 438 cannot be invoked after the arrest of the accused- The
grant of anticipatory bail to an accused who is under arrest involves a contradiction of
terms. After arrest, the accused must seek his remedy under S 437 or S439 of the Code, if
he wants to be released on bail in respect of the offence or offences for which he is
arrested.
5. Certain questions were raised- Can an order be passed under the Section without notice to
the Public Prosecutor? It can be. But notice should be issued to the Public Prosecutor and
the question of bail should be re-examined in the light of respective contentions of the
parties. The ad interim order too must conform to the requirements of the Section and
suitable conditions should be imposed on the applicant even at that stage. Should the
operation of an order passed under Section 438(1) be limited in point of time? Not
necessarily.
6. Section 438(1) - to be interpreted in the light of Article 21 of the Constitution.
7. Order under Section 438 would not affect the right of police to conduct investigation
8. Conditions mentioned in Section 437 cannot be read into Section 438.
Extraordinary Character- the power to release on anticipatory bail can be described as of an
‘extraordinary’ character. This would not justify the conclusion that the power must be exercised
in exceptional cases only. Powers are discretionary to be exercised in the light of circumstances
of each case.
The whole framework of ANTICIPATORY BAIL law has been revised by Amending Act 25 of
2005- the considerations-by HC and Sessions Judge should have while granting anticipatory bail-
 nature and gravity of the accusations
 antecedents of the applicant including the facts as to whether he has previously
undergone imprisonment on conviction by a court in respect of any cognizable offence
 the possibility of applicant’s fleeing away from justice
 whether the accusations have been made with a view to injuring or humiliating the
applicant
 the court may impose conditions-
1. that the person shall make himself available for interrogation by a police officer as and
when required,
2. That a person shall not make any inducement, threat or promise to any person for
dissuading him from disclosing the facts of the case to the Court or to the police,
3. Shall not leave India without the previous permission of the Court,
 4. Such other condition that may be imposed under Section 437(3)

Powers of Appellate Court in respect of granting bail:

While any appeal against conviction is pending, the Appellate Court may suspend the execution
of the sentence, and if the convicted person is in confinement- the Appellate Court may release
him on bail or on his own bond. The Court shall- record its reasons for taking such action[S
389(1)]
In case of delay of hearing- Kashmira Singh v. State of Punjab- an appellant would become
entitled to claim bail on the ground of the delay in hearing the appeal itself unless there are
cogent grounds for acting otherwise.
The Appellate Court can have power to grant bail to the convicted person only after the appeal is
actually filed.
The circumstances under which the convicted person who intends to file an appeal against his
conviction is to be released on bail by the trial court are:
 Where such a person, being on bail, is sentenced to imprisonment for a term not
exceeding three years
 Where the offence of which such person has been convicted is bailable one, and he is on
bail[S 389(3)]
An appeal against the order of acquittal can be made only to the High Court u/s 378.
The discretion given to the Court in admitting the accused to bail is to be exercised judicially. S
397(1) powers to release on bail have been given to Appellate Court. Courts exercising
Revisional jurisdiction (HC and Sessions Court) has been given similar power during pendency
of revisional proceedings.
Note- SC is not an appellate court. The public prosecutor has been given right to seek
cancellation of bail.

BAIL NOTES SET 2

Chapter 33 - Provisions as to Bail and Bonds
Object of arrest and detention is primarily to secure his appearance at the time of trial and
to ensure that in case he is found guilty he is available to receive the sentence. If his
presence at the trial could be reasonably ensured otherwise than by his arrest, it would be
unfair to deprive him of his liberty during the pendency of criminal proceedings against
him.
The provisions of bail restore the liberty of the arrested person without jeopardizing the
objectives of arrest. The basic rule is to release him on bail unless there are circumstances
suggesting the possibility of his fleeing from justice
Definition:
1. Bail has not been defined under the code.
2. Law Lexicon: defined as ‘security for the appearance of the accused person, on
giving which, he is released pending trial or investigation.’
3. It means to set at liberty a person arrested or imprisoned on security being taken
of his appearance in the court on a particular day.
4. The code has classified all offences into Bailable and Non Bailable offences:
a. Bailabale: 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.
b. Non bailable means any other offence
c. Generally, serious offences i.e. offences punishable with imprisonment for
3 years or more, have been considered as non bailable offence. But there
are exceptions.
d. A person accused on bailable offence has a Right to be released on bail.
50 (2) makes it obligatory for a PO arresting such a person to inform him
on the right to be released on bail. And in NB offences, it is upto the
discretion of the court to grant bail.
S 436: In what cases bail to be taken:
1. Where there are no reasonable grounds to believe that the accused was involved in
the commission of a NB offence, the accused shall be released on bail under 436 (1).
a. As soon as it appears that the accused is prepared to give bail, the PO or the
court is bound to release him.
b. The bail can also be without sureties and instead taking bail from him (First
Proviso, 436(1))
c. S 436 is a mandatory provision. Under it, the Mag is bound to release the
person on bail. But bail means release from legal custody. A person who is
under no such custody
d. Power vests with court.
i. Court: court which has the power to take cognizance of the case.
e. Power of Mag to grant bail does not depend upon his competence to try the
case but on the p[unishment prescribed in the offence:
i. Exec Mag: No juris to grant bail except in repect of offences
punishable with fine or imprisonment upto 3 months.
f. Bail order is not a final order.
i. It can be rescinded, modified or cancelled at any stage.
g. Right to released on bail cannot be nullified indirectly by fixing too high an
amount of bond.
 i. Court cannot impose any condition on a bail order u/s 436.
ii. Only exception is 436(2) which provides that a person who absconds
or has broken the condition of his bail bond when he was released on
bail in a bailable case on a previous occasion, shall not, as of right, be
entitled to bail when brought before the court on any subsequent date
EVEN THOUGH THE OFFENCE may be BAILABLE.
iii. Further, the Court can call upon any person bound by such bond to
pay the penalty thereof u/s 446.
h. Other provisions relating to bail:
i. A person shall be released on bail if investigation are not completed
within the prescribed no of days (60 or 90)
ii. No reasonable grounds for believing the accused guilty of a NB
offence but sufficient for further enquiry.
iii. Trial not concluded within 60 days
iv. Release on bail after conclusion of trial but before the judgment is
delivered.
S 437: Cases of Non Bailable offences:
1. Where any person accused of or suspected of the commission of any NB offence
is arrested or detained/or appears or is brought before a court (other than HC,
Court of Session), he may be released on bail, but:
a. Such person shall not be so released if there appear reasonable grounds
for believing that he has been guilty of an offence punishable with death
or life imprisonment.
b. Such person shall not be so released if such offence is a cognizable offence
and he had been previously convicted of an offence punishable with
death, life imprisonment or imprisonment for 7 years or more, or he had
been previously convicted on two or more occasions..
2. S 437 was amended. Any officer or court must give reasons in writing while
granding bail
3. Where an accused surrenders in court and applies for bail, the subordinate
courts have jurist to release him on personal bond, pending disposal of his bail
application. This should be particularly so in cases of women and children
4. Bail app should be decided as expeditiously as possible.
5. Grant of bail with conditions: Power to impose condition can only be exercised
when
a. The offence is punishable with imprisonment (7 years or more0
b. The offence is offence against the state, offence against the human body
or offence against the property.
c. Where the offence is one of the abetment to, or conspiracy to or attempt
to any such offence in a and b
6. Discretion in granting bail:
a. Law favours allowance of bail and refusal is an exception.
b. Scope of discretion depends upon various circumstances:
i. Scope of discretion varies in inverse proportion to the gravity of
crime.
 ii. As between police and judicial officers, wider discretion to grant
bail has been given to judicial officers
iii. HC or Court of Session has far wide discretion than that given to
other courts and judicial officers
c. Guidelines to be kept in mind while granting bail:
i. Nature and gravity of offence:
1. If the accused is suspect of having committed the offence of
murder, conspiracy against the state, the court will reject
the bail application.
ii. Severity of punishment which the conviction will entail:
1. The accused faced with a grim prospect of being convicted
may be tempted to jump bail if he is released on bail
iii. The danger of the accused person’s absconding if he is released.
iv. The danger of witness being tampered with:
1. If the accused is rich or a man of status, he is in a position
to cause obstruction in the way of the prosecution by
pressurizing the witnesses and by tampering with the
evidence.
2. Gurcharan Singh v State: Police officers bail cancelled by
HC and upheld by SC
a. SC: it is necessary for the court to consider whether
the evidence discloses a prima facie case to warrant
his detention in jail besides other relevant factors
v. The position and status of the accused with teference to the victim
and the accused:
1. Held in Raj Harnarain Singh case, position or status
shoukd not be taken into consideration
vi. Health, age and sex of the accused:
1. If the accused is a female, male under 16 years, or a sick or
infirm person, the bail is usually granted.
vii. Prevention of offence being repeated:
1. Previous convictions and the criminal record of the accused
have to be taken into account.
viii. Protracted nature of trial:
1. Accused has a right to claim speedy trial and if there is
unreasonable delay, such an accused must be released on
bail – Hussainara Khatoon
ix. 3 paramount considerations:
1. Accused should not flee from justice
2. He should not tamper with evidence
3. He should not intimate witness
x. Opportunity to the applicant for the preparation of his defence
and access to his counsel.
xi. Nature of the evidence in support of accusation/ nature and
gravity of the circumstances in which the offence is committed.
 d. Collateral consideration such as accused being poor will NOT be taken
into consideration: Jagdish Kumar v State.
e. If a person charged for both bailable and non bailable- gravest offence
will be considered.
Anticipatory Bail (S 438)
1. Term ‘AB’ implies a direction to release a person on bail issued even BEFORE
the person is arrested.
2. In other words, it is a convenient mode of conveying that it is possible to apply
for bail in anticipation of arrest.
3. When the courts grant anticipatory bail, what it does is to make an order that in
the event of arrest, a person shall be released on bail.
a. Therefore, it is only on arrest that the order granting AB becomes operative.
4. Diff bet ordinary bail and AB;
a. Whereas the former is granted after arrest and therefore means release from
the custody of police,
b. The latter is granted in anticipation of arrest and is therefore effective at the
very moment of arrest.
5. Wasn’t there in old code:
a. Need for it arises because sometime influential persons try to implicate their
rivals in false cases for the purpose of disgracing them or for other purposes
by getting them detained in jail for some days
6. Rationale behinf ab (insurance against police custody ) is that individual liberty
must not be put in jeopardy on the instance of irresponsible and unscrupulous
persons. While granting AB the court must strike a balance so that individuals
may be protected from unnecessary humiliation and the faith of public in the
administration is not shaken.
7. S contemplates two CONCURRENT jurisdictions viz the HC and the Sessions
Court.
a. It is left to the person to choose either of them
b. A person after unsuccessfully moving the Ses Court for AB can again move
the HC for the same purpose and the same section.
c. Power to grant AB vests only with Ses and HC having juris over the locale of
the commission of the offence of which the person is accused.
d. Neither the place of residence nor the place of apprehension of arrest give
juris.
8. AB cannot usually be granted during the pendency of the investigation.
9. Where the previous application was dismissed, unless there is substantial change
in situation or discovery of new incriminating facts, anticipatory bail should not
be granted.
10. App for AB would be maintainable even when the Mag has issued process under
204 or at the stage of committal of the case to sess court or even at subsequent
stage.
11. Discretion in granting AB- Guidelines:
a. AB could not be claimed as a matter of right
b. It is not available in case of bailable offences.
c. In case of Gurbaksh Singh Sibbia v State of Punjab, the SC has laid down
various principles, which are:
i. The legis has conferred wide powers on HC/Ses Court to grant AB.
The limitations imposed in 437 are not relevant under 438.
1. Thus there is no restriction in granting such bail merely
because the offence is one punishable with death or life
imprisonment.
2. The use of expression “reason to believe” in S 438(1) shows
that the belief that the appellant may be arrested must be
founded on reasonable grounds. Mere ‘fear’ is not belief
3. The court while granting AB may impose conditions 438(2)
with a view to striking the balance between individual’s right
to personal freedom and the investigational rights if the police
4. Legally, it is possible to pass an exparte order to anticipatory
bail. But ordinarily, an order should be passed after giving
notice to prosecution so that it can oppose the bail.
5. No ‘blanket’ order:
a. The app must have reasonable grounds to believe that
he might be arrested for having committed a NB
offence. AB cannot be given in absence of a specific
accusation.
6. Filing of Fir is not a condition precedent:
7. No AB after arrest:
a. S 438 cant be invoked after arrest. After arrest the
accused must seek his remedy under 437/439.
b. Bail to be effective till the conclusion of trial:
i. As soon as the bail is enlarged, it would be
deemed that the bail was granted under 437
ii. Consequently, the bail shall remain effective till
the conclusion of trial.
8. Cancellation of AB:
a. Court making an order of AB is entitled upon
appropriate consideration to cancel or recall the same.
9. Considerations to be kept in mind:
a. The nature and seriousness of the proposed charges, the
context of the events likely to lead to the making of the
charges, a reasonable possibility of the applicant’s
presence not being secured at the trial, reasonable
apprehensions that the witnesses will be tampered with.
10. It CANNOT be laid down as an inexorable rule that AB cannot
be granted unless the proposed accusation appears to be
actuated by mala fides; AND equally that AB must be granted
if there is no fear that applicant will abscond or flee from
justice.
11. Granting of AB only in exceptional cases:
 a. The discretion is to be used with care and
circumspection (as it is an extraordinary remedy)
b. Further, the Court while giving so must record reasons.

1. Difference between Bailable and Non- Bailable offences:

 The Code of Criminal Procedure classifies the offences as Bailable or Non-

Bailable under the First Schedule.
 Loosely, it is understood that Bail is granted as a matter of right in bailable
offences whereas Bail is a matter of discretion in Non-Bailable offence.
 But what is the criteria for such distinction?
 The 154th LC Report stated that it is the gravity of offence that determines
whether an offence will be bailable or non-bailable, in particular, an offence
with 3 years or more imprisonment will be non-baialble. However, it also
imposed a caveat stating there are no hard and fats rule for the same.
 Which is why there are many offences which are punishable with 7 years
and more imprisonment but are still classified as bailable.
 One can however safely say that no offence in IPC has been declared to be
non-bailable which is punishable with less than 6 months of max.
imprisonment and there are no bailable offences which are punishable with
more than 7 years of imprisonment.

2. Section 436 of the Code:

When any person other than a person accused of a non- bailable offence is arrested
or detained without warrant by an officer in charge of a police station, or appears
or is brought before a Court, and is prepared at any time while in the custody of
such officer or at any stage of the proceeding before such Court to give bail, such
person shall be released on bail.

3. Section 437 of the Code:

When bail may be taken in case of non-bailable offence.

a. What stage does it apply?

- Remand stage i.e. when the accused is brought before the magistrate within 24
hours after arrest.
b. Discretion of the magistrate or no discretion at all.
- The section comes with exception:
 o If person is guilty of an offence punishable with death or LI AND there
appears reasonable ground for believing that they are guilty, then such
person shall not be released on bail.
( So, there is an express requirement to find whether or not a prima-
facie case exists by the Magistrate)

S. Circumstances before the Magistrate’s Court Can Bail

No. be
granted?

1. Offence not punishable with Death or LI YES

2. If there are reasonable grounds for believing that the NO

person is guilty of an offence ( D/LI)

3. If there are reasonable grounds for believing that the Yes

person is guilty of an offence (D/LI) but is under 16 years
or is a woman or is sick or infirm

4. If there are no reasonable grounds for believing that the yes

accused has committed a non-bailable offence but there
are sufficient grounds for further inquiry into their guilt

5. In case of magistrate triable case, the trial of a person if is Yes (wider

not concluded within 60 days from the date fixed for discretion)
taking evidence and such person has been in custody
throughout

6. If after conclusion of the trial and before judgment, the Yes (wider
court is of the opinion that the accused is not guilty discretion)

Section 439 ---- No requirement to see the antecedents or the existence of prima
facie case. Discretionary to impose bail conditions. But it is mandatory for the
magistrate to do the same.

Should the accused follow hierarchy?

First, magistrate’s court and then Sessions and then HC?