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Bail- All you need to know!

Written by: Vishal Chouhan


In legal system, whenever a crime takes place, police start their investigation after FIR being reported. In their investigation, police convict the people they think involved in the crime. As, trial of court take many weeks and months and person has to remain in the jail during the trial. What if person convicted is not actually involved in the crime? The only way out is to grant a bail for himself. The term ‘bail’ is not defined under Criminal Procedural Code of India, but it means temporary release of a person from legal custody and be present, any time and any place, the court ordered. A surety is a person pays the amount of the bail and pledge for his appearance in the court of law. In civil cases, everyone has right to get bail but in the criminal cases, its all lie on the discretion of the court. The concept of bail started from the England. During that time prisoners had hard time traveling from different places and different courts and be part of unhygienic detention centres. So, the concept of bail was started to temporary release of prisoner during the trial period, with certain conditions. During 1215, Magna Carta was created, which was the charter of rights containing citizens’ rights, which also insured thata person cannot be detained during his trial. In 1679, Habeas Corpus Act was introduced which insured that prisoner can be released by the court using some type of surety. The Bill of Rights was added in the Constitution of America in 1791, ensures all the rights related to bail. Criminal Procedural Code 1973, contain the provisions related to bail, in case of India.

Definition and types of bail

As mentioned above, the term bail is not defined anywhere under Criminal Procedural Code 1973, but provisions related to bailable and non-bailable offences are given between sections 436-450 of CrPC. In India, bail is categorized into three types: Regular Bail, Interim Bail and Anticipatory Bail. Under Regular bail, when police arrest a person in non-bailable offence and took him into custody, the person can apply for bail under section 437 and section 439 of CrPC. Under section 437, a person is granted bail in non-bailable offence, when there is no reasonable ground to prove his guilt in the offence. But he will not be granted bail if he committed a serious offence or is a habitual offender. Section 439 of CrPC gives power to High Court and Session Court to release the accused person on bail, with certain necessary conditions. Interim Bail is a temporary and available for short time, when there is pendency of application for regular bail or Anticipatory bail during the trial. So, person is released on interim bail during that period and can be extended and when the time expires, person is again kept under the police custody. Anticipatory Bail is applied by a person when he anticipates his arrest in a non-bailable offence. The person can get Anticipatory bail under section 438 of CrPC from session court or High Court, and he will not get detained by police, but he must comply with some of the requirements, such as being available during the investigation, not inducing anyone to submit facts against him, and not fleeing the country without approval from the court.


Bail is granted due to certain reasons, such as, innocents are not kept in jail during the trial, confinement of innocent is against basic rule of law, keeping a person in jail without proven guilty also violates the Article 21 of Indian Constitution, and family of accused also have to suffer if he is their only source of income for family. So, talking about the procedure of getting bail, it can be granted in both bailable as well as non-bailable offences. In bailable offence, person can apply for bail under section 436 of CrPC, he will be granted bail as matter of right, by paying bail amount with or without sureties. In non-bailable offence, also person can be granted bail under section 437 of CrPC, but it’s on the discretion of the court and is not matter of right for accused. Court can refuse the bail if there are reasonable grounds to prove his guilt and if the person is habitual offender and committed offences punishment of death or imprisonment above seven years. Court can also grant bail if the accused is child or women, if evidence are not enough to prove their guilt, or if FIR has not been filed properly. The accused granted bail in non-bailable offences has to follow certain conditions, such as, be present during bail bond, undertaking to not commit similar offence again, or undertaking to not any inducement or threat to any person who is familiar with facts of the case. The procedure to apply for bail depends on case-to-case. If in the case, person has not been arrested yet and he anticipates his arrest in near future, then he will apply for Anticipatory bail with his lawyer under section 438 of CrPC. if he is granted Anticipatory bail from the court then police cannot arrest the person who is charged for the offence. In the other case if the person is already under the police custody and have been charged for committing a bailable offence then, the person has to present Form-45, given under Second Schedule, to the court and it can only be granted from the court. If the person has been charged for non-bailable offence, then also the person has to present that form in the court, but this time it’s on the discretion of the court to whether grant the bail or not, based on evidence and facts of the case and other factors such as character of the person, financial condition, kind of the offence, whether habitual offender etc. Power to cancel bail also lies in the hands of the court. Court can exercise this power under section 437(5) and 439(2) of the CrPC. Court can cancel the bail during any phase of the case. After the cancellation of the bail, the accused will be again sent to jail. But if the person was granted bail by police officer, then court does not have power to cancel the bail. In section 437(5) of CrPC, it is mentioned that court can cancel the bail of the person if he was granted bail under sub-clause 1 and 2 of the given section. In section 439(2) of CrPC, it is mentioned that High court or Session court can direct any person to convict him into jail, who was earlier out on bail.


Person applying for bail is part of his Fundamental Right under Article 21 which talks about Right to personal liberty. Refusal for applying bail would be against his personal liberty as keeping innocent in jail would be against the rule of natural justice. People should also not abuse their power of filing multiple bail application when there is no significant change in the facts or events of the case from earlier application of bail. It is against the principle of law as application with same facts and events has already been denied by the court. When application is filed in higher court, then higher court keep track of the reason for denying the previous bail application and give more weightage in those reasons while giving their decision. Reforms in bail system should also be made as time changes. Country should implement reforms recommended in Law Commission 286th Report, which would make our bail system more transparent and ensure our Right to Liberty as given under Indian Constitution.

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