Introduction

• Word ‘Bail’ is nowhere defined in the Cr.P.C. Bail is to procure

the release of a person from legal custody with an 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 accused of a serious crime and is likely to be
convicted and punished for such a crime and chances are that he
will abscond or jump bail; if such person is arrested, it is not
desirable to grant him bail and restore his liberty.
• Similarly, if the arrested person, if released on bail, is likely to
temper with the prosecution witnesses and obstruct in the
conduct of the trial, or is likely to commit more offences during
the period of his release on bail, it would be improper to release
such person on bail.
• On the other hand, where there are no such risks involved, the
person should be released on bail.
• “The bail and not the jail” should be the rule because
accused is presumed to be innocent unless and until proved
guilty hence it would be unjust to keep him in jail before his
guilt is proved.
• The law of bail, truly speaking, has to balance out between
individual liberty of the accused and the liberty of the
society, in the sense of its protection.
• The Cr.P.C. has classified all offences into bailable and non-
bailable, as per schedule attached to it.
• An analysis of the schedule shows that all serious offences,
i.e., offences punishable with imprisonment for three years
or more have been classified as non-bailable though there
are exceptions to this rule. (Part II of schedule)
• If a person accused of bailable offence is arrested or
detained without warrant, he has the right to be released on
bail.
• But if the offence is non-bailable then it does not mean that
the person accused of such offence shall not to be released
on bail. In such cases bail is not a matter of right but a
matter of discretion only.
 Bail in Bailable offence

• S.436 Cr.P.C. says that when any person who has committed a
bailable offence is arrested or detained without warrant by the police
or appears or is brought before a court, such a person shall be
released on bail.
• This bail may be granted by the police officer at the police station or
by the Magistrate in the court.
• Such person is generally required to produce bail bond of 2 sureties
to the satisfaction of police officer or the court, but such a person
may be released on his executing a bond without sureties also.
• Police or the court has no option but to grant the bail in bailable
offence.
• It may be recalled that u/s 50 (2) it is mandatory for a police officer to
inform the accused of his right of bail as soon as he is arrested.
• If the accused person is ready to give bail bond, the police or court
is bound to release him.
Indigent person:-
• Explanation:- where a person is unable to give bail bonds
within a week of the date of his arrest, it shall be sufficient
ground for the court to presume that he is an indigent
person.
• The Police officer or the court may release any person on
his personal bond without bail bonds of sureties.
• But if the accused person is an indigent person, he shall be
released on his personal bond without sureties bonds.
(+Cr.P.C.AA 2005 w.e.f.,23-6-2006)
• S.436 (2) makes it clear a provision to the effect that a
person who absconds or has broken the condition of his bail
bond when he was released on bail in bailable cases on a
previous occasion, he shall not be entitled to bail when
brought to the court on any subsequent date even though the
offence is bailable.
• Meaning thereby, that the court may refuse to release him
on bail if he has failed to comply with the conditions of the
bail-bond as regards the time and place of attendance.
• But if the person released on bail in bailable offence
indulges in acts which are against the concept of fair trial,
the High Court or Court of Session may cancel his bail and
commit him to custody (S.439 (2).
Case: Hussainara Khatoon v. State of Bihar

• Bail when accused is in jail for a period up to half of the

maximum period of imprisonment specified for that offence
under law.
• Section 436-A Maximum period for which an under trial
prisoner can be detained?
• Where an accused has during investigation, inquiry or trial
(I.I.T.) undergone detention for a period extending up to one-
half of the maximum punishment specified for the offence, he
shall be released on his P.B. with or without sureties.
(excluding offences in which death penalty is one of the
punishment)
• Court has discretion to order his continued detention longer
than one-half of the said period or release him on bail instead
of P.B. with or without sureties.
• Release of accused if he has undergone maximum sentence
fixed by law. (436-A, II proviso)
• No accused shall be detained during IIT for more than the
maximum period of imprisonment provided for the said
offence.
• Explanation:- In computing the period of detention u/s 436-
A, for granting bail, the period of detention passed in jail due
to delay in proceedings caused by the accused shall be
excluded.(eg., he fails to file B.B. in spite of bail order or
takes frequent adjournments on hearing of his bail
application.)
• S. 436-A was added by Cr. P. C., AA, 2005, w.e.f., 23-6-
2006.
 Bail in Non-Bailable Offences

• S.437 Cr.P.C. provides for bail at the discretion of the court

in non-bailable offences.
• In non-bailable offences, bail can only be granted at the
discretion of the court.
• This discretion to grant or not to grant the bail depends upon
the gravity of the crime, the likelihood of absconding the
accused etc.
• This discretion is not arbitrary but judicial.
• The judicial discretion in granting or refusing bail has to be
applied keeping in mind the enormity of the charge, nature of
accusation, severity of punishment, nature of evidence,
danger of witnesses being tampered with, opportunity of the
applicant for preparation of his defence, risk of his death, age
and sex.
• The previous conviction and criminal record of the accused
person and the likelihood of the repetition of the offence by
the accused person if released on bail, are also be taken into
account while deciding the question of bail.
Power of Magistrate to grant bail in non-bailable
offences:-
when any person accused of, or suspected of commission of
any non-bailable offence is arrested or detained without
warrant by officer-in-charge of police station or appears or is
brought before a court (other than High Court or court of
sessions-see section 439), he may be released on bail at the
discretion of the court.
Restriction No. 1 :- Accused shall not be released on bail, if
there there appears reasonable grounds for believing that the
accused has been guilty of an offence punishable with death
or L.I.
Restriction No. 2 :- Accused shall not be so released on bail,
if such offence is a cognizable one and accused has been
previously convicted of an offence punishable with
death/L.I./seven years or more.
• Restriction No. 3 :- Accused shall not be so released on
bail, if such offence is a cognizable one and accused has
been previously convicted on two or more occasions of a
cognizable offence punishable with imprisonment from 3 to
7 years.

• Exception No 1 :- In spite of above 3 restrictions Court may

release such accused on bail if such person is under age of
16 years or is a woman or a sick or infirm person.
• Exception No 2 :- Court has discretion to grant bail to
accused person in spite of criminal history of accused, if
court is satisfied that it is just and proper so to do for any
special reason in the interest of justice.
• A specific negative direction is given by law u/s 437 (1)
third proviso in the matter of bail. The mere fact that an
accused person may be required for being identified by
witness during investigation shall not be sufficient ground
for refusing to grant bail if he is otherwise entitled to be
released on bail.
• Bail u/s 437 (2)- If at any stage of IIT, it appears to the court
that there are not reasonable grounds for believing that
accused has committed non-bailable offence, but there are
sufficient grounds for further inquiry into his guilt, he can be
released on bail.
• Bail provisions were made more stringent by the
Amendment Act of 1980 in Cr.P.C. Accused shall not be
released on bail if there appears reasonable grounds for
believing that he has been guilty of an offence punishable
with death or life imprisonment (S.437 (1) (i)).
• S.437 (1) was substituted by 1980 Amendment Act and it
was provided that the accused shall not be released on bail if
his offence is cognizable one and he had been previously
convicted of an offence punishable with death,
imprisonment for life or for a term of 7 years or more.
• He shall also be not released on bail if he had been
previously convicted on two or more occasions of a
cognizable offence punishable with imprisonment for three
years or more but not less than 7 years (Amendment Act,
2005).
• The police officer or the court releasing any person on bail in
case of non-bailable offence has to record in writing his
reasons or special reasons for doing so (S.437 (4)).
• S.437 (1) clearly says that the Magistrate or Police officer in
cases of offences punishable with death or imprisonment for
life shall not grant bail. However, the court may direct that
any person under age of 16 years or any woman or any sick
or infirm person accused of any such offence be released on
bail (First proviso of S.437 (1). Hence, except in cases of
children, woman and sick or infirm person, the discretion to
grant bail has been taken away from the Magistrate and
police officer in cases of non-bailable offences punishable
with death or imprisonment for life. The basis of this rule is
that the graver the offences greater will be the chances of
absconding; hence, there will be no bail. However, High
Court or Court of Sessions may grant bail even in offence
punishable with death or life imprisonment.
 Bail with conditions
• Bail may also be granted subject to certain conditions. This
is a balance between grant of bail and not granting it. S.437
(3) provides that when a person is accused or suspected of
the commission of an offence punishable with imprisonment
which may extend up to 7 years or more or of an offence
under chapter VI (offences against the state), chapter XVI
(offences against human body) or chapter XVII (offences
against property) of I.P.C. or abetment or conspiracy or
attempt to commit any such offence, is released on bail u/s
437 (1) the Court shall impose following conditions: -
1. that such person shall attend the court in accordance
with the conditions of the bond executed; or
2. that such person shall not commit an offence similar to the
offence of which he is accused, or suspected; or
3. 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 interest of justice, such other
conditions like surrender of passport, not leaving the country
without permission of the court, as it considers necessary.
• Any such bail granted u/s 437(1), (2), may be cancelled and
the person be arrested and committed to the custody (S.437
(5) and (S.439 (2). This power of cancellation is given
exclusively to the court and not to police officers.
• S.439 Cr.P.C. gives very wide powers and discretion to the
High Court and Court of Sessions in the matter of granting
bail.
• Their discretion u/s 439 is not restricted by the restriction
contained in S. 437.
• S.439 (1) says that the High Court or a Court of Sessions
may release a person on bail even if the offence is of the
nature specified in S.437 (3) and may impose any condition
which they think necessary.
 Bail on the ground of delay in trial
• In a case triable by Magistrate, if the trial of a non-bailable
offence is not concluded within a period of sixty days from the
first date fixed for taking prosecution evidence, and the accused
is through out in jail during whole of the said period, he shall
be released on bail, unless for the reasons, to be recorded, the
Magistrate otherwise directs. (437 (6))
• Bail at the conclusion of the trial:- At any time after
conclusion of the trial of a person accused of non-bailable
offence, and before delivery of judgment, court is of the
opinion that there are reasonable grounds for believing that the
accused is not guilty of such offence, accused shall be released
on executing his personal bond without sureties for his
appearance to hear the delivery of judgment. (437(7)) E.g., if all
witnesses have turned hostile and there is no reliable evidence
against the accused.
Advance bail:-
Bail to require accused to appear before next appellate
court :-
• Section 437-A added by Cr.P.C., AA 2008 w.e.f., 31-12-
09.
• Before conclusion of the trial and before disposal of appeal,
the trial court or the appellate court as the case may be,
shall require the accused to execute bail bonds with
sureties, to appear before higher court as and when such
court issues notice in respect of any appeal or petition filed
against the judgment of the respective court and such bail
bonds shall remain in force for six months.
• If accused fails to appear before higher court, the bond will
stand forfeited and procedure u/s 446 Cr.P.C., will apply.
 No arrest, No remand, No jail, Hence no bail

• Arnesh Kumar v. State of Bihar, (D.O.J., 2-7-2014) held

by the Supreme Court that if the offence is punishable
with imprisonment upto 7 years, no arrest can be made by
the Police without issuing a notice to the accused. If the
accused complies with the notice and co-operates in the
investigation, he will not be arrested.
• The I.O. has to satisfy himself if the arrest is inevitable and
this will be scrutinised by the Magistrate.
No remand to jail : consequently, if offence is punishable
with imprisonment upto 7 years, since arrest is not to be
made, there is no need of remand. Hence Magistrate will
not grant remand in such cases.
 Cancellation of bail
The Magistrate who granted bail cannot cancel bail in bailable
offences u/s 436. He can refuse bail if on any subsequent occasion in
the same case accused is brought before him on his failure to comply
with the conditions of the bail bond as regard time and place of
attendance (S.89).
But no express powers of cancellation like S.437 (5) have been given
u/s 436.
According to S.437 (5), any court, which has released a person on
bail, may, if it considers necessary to do so, direct that such person be
arrested and commit him to custody after cancellation of his bail.
• This power to cancel bail has been given to the court and not to the
police officers.
• Secondly, the court, which has granted the bail, can alone cancel it or
higher court can cancel it.
• A court of Magistrate cannot cancel the bail granted by a police
officer. For cancellation of bail in such a situation, it is only the High
Court or Court of Sessions u/s 439, who is empowered to cancel the
bail.
• S.437 (5) gives power and discretion to cancel the bail. It
does not lay down any guidelines as to when and how the
discretion is to be utilized.
• Bail can be cancelled if the accused on bail commits the
same offence for which he is being tried or if the accused
forcibly prevents the search of place under his control or if
he tampers with prosecution witnesses or if he runs away to
a foreign country or absconds.
• The HC and Court of Sessions may direct u/s 439 (2) that
any person who has been released on bail, his bail be
cancelled and he be arrested and committed to custody.
• These powers of cancellation given to these higher courts
are quite wide. Whether the offence was bailable or non-
bailable is immaterial; whether police officer or a court
granted the bail is also immaterial.
Special powers of High Court and Court of sessions
regarding bail (Section 439 Cr.P.C.)
• High Court or court of sessions may direct that any
person accused of any offence who is in custody, be
released on bail after hearing the counsel for accused
and public prosecutor.
• Such a court can impose conditions while releasing him
on bail if the offence is of the nature specified in S.
437(3).
• Cancellation of Bail:- Such a court can cancel the bail
of any accused person who has been granted bail under
chapter 33
• Notice to Public Prosecutor:- High Court or court of
sessions shall, before granting to a person who is accused of
an offence which is exclusively triable by court of sessions
or is punishable with L.I., give notice of the bail
application to PP, unless for reasons to be recorded in
writing, court is of the opinion that giving of notice is not
practicable.
• But if offence is punishable u/s 376 (3),376 AB, 376 DA,
376 DB of IPC, giving of notice to PP within 15 days of
filing of bail application is compulsory and in all such cases,
the presence of informant (who lodged FIR) shall be
compulsory.
• + by Criminal law AA, 2018, w.e.f., 21-4-2018
 Anticipatory Bail
• S.438 Cr.P.C. empowers the High Court and Court of
Sessions to issue direction for grant of bail to the person
apprehending arrest. AB is a bail in anticipation of being
arrested. S.438 Cr.P.C. was omitted in U.P. S.438 was not
present in the old Cr. P.C. of 1898. It was introduced on the
recommendations of 41st Law Commission Report. The
necessity to grant AB arose mainly because sometimes
influential persons try to implicate their rivals in false cases for
the purpose of disgracing and harassing them by keeping them
in jail for some days.
• On the other hand, when a person accused of an offence is not
likely to abscond, or otherwise misuse his liberty while on bail,
there seems no justification to require him first to go into jail
and then apply for bail. For such category of persons S.438 was
introduced in 1973 in the new Cr.P.C.
Bail presupposes custody—A.B. is an exception
S.438 provides that when a person has reason to believe
that he may be arrested on accusation of having
committed a non-bailable offence, he may apply to the
High Court or Court of Sessions for a direction under this
section and the court may issue direction that in the
event of such arrest he shall be released on bail.
The Equation: Non-bailable offence + order of A.B.
= bailable offence
Factors to be taken in consideration while deciding an
application for A.B. :-
1. the nature and gravity of offence.
2. previous conviction of the accused, if any.
3. the possibility of the applicant to flee from justice
4. whether the accusation has been made with the object of
injuring or humiliating the applicant by getting him arrested.
–After considering above factors, the application of AB may
either be rejected forthwith or court may issue an interim
order for grant of AB
–If AB is rejected, or if interim order is not granted, police
can arrest the accused without warrant.
–After grant of interim order, a notice along with copy of the
order shall be issued to Public prosecutor and S.P., (being
not less than 7 days notice) for reasonable opportunity of
being heard for final hearing on AB application.
• Presence of the accused:- The presence of the applicant
seeking AB shall be mandatory at the time of final hearing
and passing of order on AB., if on the application of PP,
the court considers such presence necessary in the interest of
justice. (+ Cr.P.C.,AA, 2005 w.e.f., 23-6-2006)
• Accused to be taken in custody, if AB is rejected.
• Conditions which may be imposed in AB order:-
following conditions may be imposed:-
1. that the person shall make himself available for
interrogation by a police officer as and when required.
2. a condition that the person shall not, directly or indirectly,
shall make any inducement, threat or promise to any witness
so as to dissuade him from disclosing such facts to the court
or police officer.
3. that the person shall not leave India without previous
permission of the court.
4. such other conditions as may imposed u/s 437 (3).

What is the effect of an order of AB ?

(i) If a person is granted AB, and such person is thereafter
arrested without warrant by the police on same accusation and
he is prepared at the time of arrest or at any time in the custody
of police to give bail, he shall be released on bail by the
police. (keep the certified copy of the order of AB like Aadhar
Card in your pocket)
(ii) Magistrate taking cognizance of such offence shall issue
only bailable warrant inconformity with the direction of the
High Court or the sessions court as the case may be in the first
instance.
• No AB if the person is accused of offences u/s 376 (3), 376AB,
376DA, 376DB of IPC. (+ by Criminal law AA, 2018 w.e.f.,
21-4-2018)
• 376(3) IPC- Rape on a woman under 16 years of age (20 years
to L.I., which means remainder of accused’s natural life + fine)
• 376AB, IPC- Rape on a woman under 12 years of age (20
years to L.I., which means remainder of accused’s natural life +
fine) or with death
• 376 DA, IPC – Gang rape on a woman under 16 years of age
(L.I., which means remainder of accused’s natural life + fine)
• 376DB, IPC - Gang rape on a woman under 12 years of age
(L.I., which means remainder of accused’s natural life + fine) or
with death. No AB if accused is arrested/is in jail/police
custody.
• No AB if a person is accused of an offence under SC & ST
(Prevention of Atrocities) Act, 1989. This Act was amended in
 Conclusion

• AB is granted only in non-bailable offences while no such provision

is made if the person is accused of a bailable offence.
• The reason is that whenever a bailable warrant is issued, it is endorsed
with a direction that the person shall not be arrested if he is ready to give
sureties to the extent of amount mentioned in the bailable warrant itself.
• Truly speaking, the grant of direction u/s 438 Cr.P.C., converts a non-
bailable offence into bailable one, since it gives direction to the police
not to arrest such person.
• No AB is available for unspecified offences. Where a person has reason
to believe that he may be arrested on accusation of having committed a
non-bailable offence, he may apply before court of sessions or High
Court for a direction for AB that in event of his arrest, he should be
released on bail.
• The moment an accusation is launched against a person, the
apprehension of arrest gets crystallized and confirmed and there is an
occasion to apply for anticipatory bail u/s 438.
• AB can only be granted when the clouds of charges are roaming around
one’s head.
DEFAULT BAIL ( different from regular bail and not covered
under Chapter 33 of CrPC)

• Default bail, also known as statutory bail, is a species of bail

which accrues as a right to an accused detained in custody, when
the police fail to or are unable to complete the investigation and
file the chargesheet within the time frame stipulated under the
law.
• As the term implies, default bail is issued on the default of the
investigating agency to conclude its investigation and file its
report within time.
• Under Section 57 of the Criminal Procedure Code, 1973
(“CrPC”), any person arrested by the Police without a warrant,
cannot, under any circumstance, be detained in custody beyond
24 hours, in the absence of a special order of a Magistrate so
empowered under Section 167 of CrPC authorising such
detention.
• The statutory relief of default bail is different from the usually
• The concept of default bail is enshrined under and governed by
Section 167 of CrPC. sub-section 2 of Section 167, a
Magistrate to whom an accused is forwarded under Section
167, may authorize detention of such accused when
investigation has not been completed within the 24-hour
mandate, for a for a term not exceeding fifteen days in the
whole.
• A further mandate, under the proviso to Section 167(2), is that
on expiry of such authorised detention, which may be extended
to a period of 90/60 days as may be applicable, depending on
the nature of the offence alleged, an accused shall be released
on bail if he is prepared to and does furnish bail.
• The said provision does not however lay down any time limit
for completion of the investigation. In substance, it only deals
with the detention of an accused in custody.
• It is therefore axiomatic that first, investigation must be
completed, pursuant to which a chargesheet must be filed
within the stipulated period. Failure to do so would trigger the
Special Cases:
• Some special laws like the Narcotic Drugs and Psychotropic
Substances Act, the time period for investigation may be
different, such as 180 days.
• In the Unlawful Activities (Prevention) Act 1967, the default
limit is 90 days only, which can be extended to another 90 days.

Case: Uday Mohanlal Acharya vs. State of Maharashtra

(2001):
The SC held that the accused shall be said to avail of his right
to default bail when he files an application for the same and not
when he is released on default bail.
If an order of default bail is passed in favour of the accused, but
he/she fails to furnish bail and a charge sheet is filed in the
meantime, then the right to default bail shall stand extinguished.