Bail as a meaningful component of criminal justice system in India, goes a long way

maintaining an individual freedom with certainty of Attendance for trial. Bail is defined
from the notion that a person is deemed innocent until the person is proven guilty. It is
legal process through which one who is accused of a certain crime is set free on certain
conditions. This is to avoid situation where the accused is detained thereby being
constrained to attend the court sessions. In India there are many forms of bail which are
allowed under the Indian legal system based on the type of offence, the seriousness of the
charges and the accused themselves.

The word bail is defined in Black’s Law dictionary as “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.” Supreme court, in Moti
Ram v. State of M.P.1, said that “There is no definition of bail in the Code although
offences are classified as bailable and non-bailable. The actual Sections which deal with
bail... are of blurred semantics. We have to interdict judicial arbitrariness, deprivatory of
liberty and ensure fair procedure which has a creative connotation”.

Types of Bails

Regular Bail

This is one of the most frequently granted bails which are given to those arrested and
charged with a bailable or non-bailable offenses. When a person is under arrest or in
police or judicial custody he can apply for a regular bail. These provisions relating to
normal bail in India can be traced under Section 437 and section 439 of the Criminal
Procedure Code2 also known as CrPC.

Section 437 CrPC: It just gives the lower courts the discretion to release the accused on
bail in circumstances where the accused person is charged with an offence which attracts
a maximum of less than seven years imprisonment. Nevertheless, in grave offences in
which the accused cannot be released prior to trial, he/she may not be granted bail if the
person charges with heinous criminal act or considered a threat to society.

Section 439 CrPC: This section extends the power of the High Court and Sessions Court
to release suspects on bail including in non-bailable offenses but subject to a number of
1
(1978) SCC 47
2
Code of Criminal Procedure, 1973
conditions that include that the accused will not interfere with the prosecution or the
witnesses, he or she will not abscond or engage in any other criminal activities.

The court may impose conditions, such as surrendering the passport or appearing before
the police for regular check-ins, to ensure compliance and prevent the accused from
absconding.

Anticipatory Bail

Anticipatory bail is literally what its name suggests: it is bail granted where a person has
reasonable grounds to believe that such person is likely to be arrested for a non-bailable
offense. This type of bail is granted under Section 438 of the CrPC or 482 od BNSS 3 and
is fairly useful to people who have become targets of fake or vindictive persons.

Section 482 of BNSS: This provision enables a person to seek anticipatory bail if he / she
has reasons to believe that an FIR or a complaint would be filed against him / her leading
to his/her arrest. While the traditional bail is taken after the arrest made anticipatory bail
is taken beforehand which protect the person from arrest. The court when delivering
anticipatory bail shall consider factors like the nature of the offense, the background of
the applicant, and dangers that are likely to be prevailed in case of grant of bail.

Anticipatory bail is granted under the conditions which may have some restrictions such
as appearance before the police for interrogation or restriction of travelling out of the
country. However, if anticipatory bail is granted, then police cannot arrest the concerned
person without following a few particular court related directives.

Interim Bail

Interim bail is a bail obtained for limited period of time and it is generally sought when
one is arrested and when he requires normal bail or anticipatory bail to be granted to him.
Its purpose is to afford only a limited kind of relief to the accused with the view to the
merits of the case being heard. There are two provisions of interim bail which are granted
under the section 437 and 438 of the code or 480 and 482 of BNSS.

3
Bharatiya Nyaya Suraksha Adhinayam,2023
Where the court cannot entertain a bail application at that very time because of
inadequacy of the documents, witnesses, or time, among other reasons, applicants are
allowed to be released on interim bail so that they do not stay in custody during
preparation of their cases. If confirmation hearing is conducted, then the court will either
approve the bail or cancel it depending with the evidence produced.

Default or Statutory Bail

It is granted under Section 167 (2) of the CrPC or 187 of BNSS and it is also called
statutory bail. This kind of bail can be granted to an accused if the investigating agency
does not file a charge sheet or complete the investigation within the periods of sixty to
ninety days depending on the gravity of the offense.

Section 187 of BNSS: This section provides that a person cannot be detained without
being arraigned and is a provision that safeguards the detainee against unlawful detention.
If the police does not present the charge sheet before the court within 60 days of detention
in respect of the offenses punishable with imprisonment of less than 10 years or 90 days
for offenses punishable with imprisonment of 10 years or more the accused shall be
entitled to default bail as of right.

The rationale behind default bail is to curb unnecessary and extended period of detention
on the accused when prosecution is dragging time on hearing their case.

Types of bail based on offence committed

Bail in Bailable Offenses

Bailable offense on the other hand refers to a statutory right, such that once the accused
has sought for bail; the court is obliged to allow him to be bailed. Section 436 of the
CrPC or 478 of BNSS deals with the provisions for the offenses which are bailable i.e.
which are punishable with imprisonment for a term not exceeding three years. In such
circumstances the law provides for the accused to be released on bail or bond or granted
recognition of a personal surety.

Bailable offense are those that are categorically classified as mere minor assaults,
defamation or being a public nuisance etc. As these offenses do not endanger the public
the law allows the accused in such cases to be released on bail in order to preserve the
principle of personal liberty.

Bail in Non-Bailable Offenses

Readily available in bailable offenses, on the other hand, it is not granted as of right and it
has to be granted after due consideration by the court. These offenses are usually of a
higher class and some of them are murder, rape, kidnapping and terrorism amongst
others. In these circumstance, the court takes the nature of the suspected offence, the
probability of the accused person skipping bail and any risk the society is likely to be put
in case the accused is released on bond.

Under section 437 of the code of 480 of BNSS, which deals with circumstances that
allows bails in non-bailable offenses, a number of prohibitive sections apply to different
types of accused, including but not limited to habitual offenders or persons accused of
capital offenses

Cancellation of Bail

Bail once granted can be cancelled by the court if the accused violates the conditions of
bail or engages in any activity that undermines the judicial process. The prosecution can
apply for the cancellation of bail if they have reasonable grounds to believe that the
accused is tampering with evidence, intimidating witnesses, or planning to abscond.

The cancellation of bail is typically governed by Section 439(2) of the CrPC or 483 of
BNSS, which empowers the High Court or the Sessions Court to revoke bail and order
the re-arrest of the accused if necessary.

Judicial Intervention

In India, provisions regarding the bail are first incorporated in the code of criminal
procedure, 1861. In 1898 code, bailable offences are delt under section 496 and
nonbailable under sections 497. These sections has been interpreted in many cases and
certain principle were laid to understand discretionary powers. Seriousness of charge,
nature of evidence, severity of punishment, character and means and standing of the
accused were laid as some of the circumstance that has to be considered while granting
the bail4.

Initially bail, in English law, was granted if the accused friends agreed to be responsible
for the accused and vouched as a surety for his appearance in the court. Later after the
implementation of the code and intervention of judicial discretion, certain rules were laid
to bring legitimate to the process of granting bail. In non bailable offence, the accused is
provided with concession and bail is allowed so as to not abuse the power. As the law
presumes the accused as innocent until otherwise proven, he/she is entitled to the freedom
to defend the case and bail create that opportunity.

According to the provision provided under the Article 21 of the Indian constitution, the
provision of speedy trial is in actuality the constitutional rights of people. There are
basically six stages in such a trial, they include investigation, inquiry, conviction, appeal,
revision and retrial. If proceedings and court expenses are delayed for some time then the
victim is allowed to apply for bail. Since the right to appeal is a constitutional right,
therefore a trial can take forever, if not for eternity and where the parole is not granted,
the accused can rot in prison for eternity as well.

The nature of the delay plays a critical role in this respect in as much as it affects the
exercise of the judicial power with regard to the granting of bale. And therefore
judgments made with judicial minds’ discretion in this regard cannot be indefensible or
unconstitutional. An eye for an eye demands that justice must be delivered within a short
time with consideration being given to legalities and other aspects.

Especially, in the case of Gudikanti Narasimhulu vs. Public Prosecutor 5, it was laid down
in 1978 that the Indian law in the case of bail operates on the bench’s instinct and
discretion. Our penal code is shy of specifying an exhaustive list of circumstances for
measurement of punishment and has completely relied upon judicial brains.

Bail is, therefore, merely a matter of judicial discretion; the case that deals with one’s
personal liberty, alongside with the question of social and public participation, are
required to be balanced in order to guarantee a speedy trial.

Guidelines for granting the bail

4
Ramchand v. Emperor, AIR 1929 Lah 284
5
1978 AIR 429
The criminal penalties provided for in penal laws in India denote the top permissible limit
of punishment within the discretion of a criminal court, except for a small number of
provisions that may dictate a minimum punishment. In the former situation, the court has
leeway in assessing punishment; nevertheless, when passing a sentence, the permission of
the judge must be grounded on the principle of proportionality in ordering the quantum of
liability in relation to the offender’s culpability of the various categories of criminal
actions, as provided by the Hon’ble Supreme Court in the case of State of M. P. v. Munna
Chaubey6. This principle grants the Judge freedom in arriving at a particular sentence in
each case, probably with the aim of providing for corrective sentences that reflect far
more nuanced aspects of blameworthiness arising from the circumstances of each case.
Briefly, such verdicts indicate that punishment has to be proportional to the offence
committed.

As per section 437 of the code of criminal procedure the court may, while granting the
bail put such conditions as the court deems proper. The law with respect to grant of bail as
has been said in Hazarilal v Rameshwar Prasad7, the court may order a person to deposit
his passport with while releasing him on bail. In other words, any condition which is not
realistic or unjust to the accused cannot be imposed. Thus it rests on the Court to make
sure that the condition which has been placed on the accused person is not burdensome
and meets the intention and purpose of the sections. Under the Section 437 (3), the Court
has powers to make several conditions regarding a person accused or suspected of having
committed an offence which is punishable by imprisonment to include: The conditions
may include; (a) that such person shall attend before the Court in accordance with the
terms of the bond executed. (b) that such person shall not commit an offence of a similar
nature to the offence with which he is charged or alleged to have committed.

Finally in the case of Sumit Mehta vs. State of NCT of Delhi8, the Supreme Court’s
decision is “The words “any condition” used in the provision must not mean that the
Court of Law possesses uncontrolled power to make any condition it desires”. Any
condition under a civil liberal democracy should be something reasonable in the context
of facts that are bothersome, acceptable in the circumstances, and functional where
pragmatic functioning is the goal and it should not negate the order of bail grant.” In the
6
AIR 2005 SC 682
7
14 CW.N. (1910)
8
9 (2013) 15 SCC 570
above said case, the Supreme Court reversed the judgment of the High Court of Delhi to
refrain the Bail Applicant to deposit Rs. 1,00,00,000/- (One Crore) in fixed deposit in the
name of the complainant in a nationalised bank and the FDR was to be with the
Investigating Officer.

In the case of Sheikh Ayub vs. State of M.P.9 it was held that order or sanction of the Court
is not necessary where the evidence is admissible on legal as well as on rational
consideration. , the Hon’ble Supreme Court, situations which seem to have no relation to
the purpose and objective of bail, and are much likely to be like a act of domestic
violence or even an violation of the individual’s constitutional and statutory rights cannot
be attempted to be fitted into the parameters of the lawful exercise of ‘judicial discretion’.
Even though, in the Amarmani Tripathi case 10, Hon’ble Apex Court has opined that while
Although the presumption of innocence principle which puts it that an accused is innocent
until proven guilty; a conditional order directing the accused to transfer a certain amount
of money that the court deems to be part of the accused’s embezzlement prejudices the
independence of the trial because it can be seen that upon assessing the bail order, the trial
court will proceed with an unjustified presumption of guilt against the accused.

Under section 67, while granting bail, the Court has to shift its attention to the possibility
of not placing on the suspect any condition that will be inconsistent with the assumption
of the innocence of the accused person.

A constitutional provision of Article 136 of the Indian constitution empowers the

Supreme Court to grant orders regarding bail which is an appeal verdict from lower
appellate courts. Nevertheless, this is an exceptional measure which should be applied
only in “exceptional situations”, in cases of a significant legal uncertainty, where prior
case-law contains conflicting judgments or in situations ‘atrocious miscarriage of justice’.
Even the Supreme Court recognises that in all cases concerning grant or refusal of bail,
‘High Court should, as a rule, be the final instance’, and that it should not interfere with
every legal or factual error in dispute There are two categories of crimes namely the
bailable and the non-bailable offences. In the first case, the accused has a right to seek for
bond. Where the accused is arraigned, then bail has to be granted depending on the
decision of the judge presiding over the case or hearing the case. These are factors that
9
(2004) 13 SCC 457
10
State Through C.B.I vs Amaramani, MANU/SC/0677/2005
have to be put into consideration such as chances of tampering with the evidence or
chances of the accused person escaping. They are supposed to consider the severity of the
charges and the type of evidence among other factors.

While it is not necessary to scrutinize evidence beyond the essential or indulge in

detriment of the circumstances in a case when giving bail, it is useful to suggest in such
orders the considerations that would justify prima facie why bail was granted particularly
if the accused is charged with a major felony. Any order that does not have such
justifications has got little or no application psychologically. That is why bail denial
should not be used as a method of punishment before one is convicted. It is also important
to remember here that under criminal law there is a principle of ‘contra bonos mores’ and
anyone is assumed innocent until proven guilty. This guilt must therefore be proven
beyond a reasonable doubt. Denial of bail also impacts on the accused Right to a fair trial
since he hardly communicates with his lawyers especially while in such a small area.

The41st Law commission report11 also recommended few broad principles to be adopted
in the code pertaining to the issue of bail, which are:

1. The broad principles adopted in the code regarding bail are:

2. Bail is a matter of right if the offence is bailable;

3. Bail is a matter of discretion if the offence is not bailable;

4. Bail shall not be granted by the magistrate if the offence is punishable by death or
imprisonment for life; however, if the accused is under 16 years of age, a woman,
a sick or infirm person, the Court has the discretion to give bail;

5. The session or High Courts have broader powers to grant bail, even for offences
punishable by life imprisonment or death;

6. Persons who violate bail bonds are not released on bail

With reference to bailable offences however, Section 496 of the Code of 1898 has
established that this is an absolute right. This was made in light of the suggested provision
which stated that if the person released on bail absconds or misses a session before the
Court, the the person loses his/her right to bail in a subsequent Court proceeding.
According to the commission, this suggestion should be agreed to and where bail has
11
Ministry of Law, 41st Law Commission report
been refused under such circumstances the refusal should have no bearing to any action
taken under section 514 for the forfeiture of the bail bond. As a result, subsection (1) of
section 496 may be renumbered, and the following subsection may be added: “subject to
the provisions of subsection(1), where a person who has been released on bail has not
complied with the undertaking of a bail bond a respects to the time and place where he is
required to participate, then the Court shall refuse to release him on bail if, for a
subsequent time in that case, he presents himself before the Court or is apprehended. ”
Any such refusal shall be subject to the provision of section 514 whereby the Court

Judicial discretion in anticipatory bail

Before the enactment of the CrPC in 1973, there was no explicit provision for
anticipatory bail in Indian law. The Code of Criminal Procedure, 1898, lacked any such
provision, leading to inconsistent rulings across various High Courts. Some courts
believed that anticipatory bail was permissible under inherent powers, while others held
that the courts had no such authority. The Law Commission of India, in its 41st Report
(1969), recognized the need for a provision like anticipatory bail, particularly to protect
individuals from false accusations made for political or personal vendettas.

The Commission recommended the inclusion of a specific section that would allow
individuals to apply for bail in anticipation of arrest. This recommendation was
incorporated into the CrPC, 1973, through Section 438. The objective was to prevent the
undue harassment of individuals by allowing them to seek bail before they were taken
into custody. This provision serves to balance the individual's right to liberty with the
state's interest in maintaining law and order.

1. Nature and Scope of Anticipatory Bail

Anticipatory bail is considered an "extraordinary" remedy and is not granted as a matter

of right. The court has to consider various factors before deciding whether to grant such
bail, including the seriousness of the offense, the potential for misuse of the liberty
granted, and the likelihood of the accused fleeing from justice.

Section 438 of the CrPC empowers both the High Courts and Sessions Courts to grant
anticipatory bail. The section is broadly worded, giving the courts significant discretion in
its application. However, this discretion must be exercised judiciously, considering the
circumstances of each case. The provision reads as follows:

1. Application for Anticipatory Bail: Any person who has reason to believe that
they may be arrested on an accusation of having committed a non-bailable offense
can apply to the High Court or Sessions Court for anticipatory bail.

2. Conditions for Granting Bail: The court may impose conditions such as
requiring the person to make themselves available for interrogation, prohibiting
the person from leaving the country without court permission, and ensuring that
the person does not tamper with witnesses.

The broad wording of Section 438 does not limit the court's discretion, but the courts
have laid down several guidelines to prevent the misuse of this provision. For instance,
anticipatory bail is not granted in cases where the offense is punishable by death or life
imprisonment unless the court is satisfied that the accusation is false or frivolous.

The Hon’ble Supreme Court in State of M. P. & Anr v. Ram Krishna Balothia and Anr 12.
did not agree with the argument that Section 438 of the Code of Criminal Procedure, 1973
as part of Article 21 of the Constitution. However, several decisions of the Apex Court
have been made to safeguard the provision of the personal liberty in explaining the
provisions of Section 438. Even the limitation of the anticipatory bail was taken in
reference by the three-judge bench of the Apex court In Salauddin Abdulsamad Shaikh v.
State of Maharashtra13, the scope of the anticipatory bail was limited and should be
granted for limited amount of time. Subsequently, the Apex Court opined that this period
of anticipatory bail should not be limited anywhere in the circumstances of the case
where there is no specific provision in the law but has by interpreting such intention has
imposed unreasonable restrictions on personal liberty of a person. However, the Apex
Court which was not cited before the Salauddin case laid down certain principles for the
anticipatory bail in Gurbaksh Singh Sibbia v. State of Punjab 14 and again in Siddharam
Satlingappa Mhetre v. State of Maharashtra 15 the Hon’ble Supreme Court rectified the
law by interpreting the right of personal liberty into Section 438 and held that the life of
an anticipatory bail will run indefinitely
12
1995 AIR 1198
13
1996 AIR 1042
14
1980 AIR 1632
15
AIR 2011 SC (CRI) 308
Later on, in the case of Sushila Aggarwal and others v State (NCT of Delhi) the bench of
five judges Amitava Roy, S. Muralidhar, I. A. Memon, Nullah, T. S. Sivasuble, and V.
Ramasubramaniam also supported the position that anticipatory bail time limit should not
be limited to a specific time period. It also stated that the investigating agency may move
to the court, which has granted anticipatory bail for cancellation of, in case the conditions
set thereunder are breached or where there is a change of circumstances.

In, Gurubaksh Singh Sibbia guidelines for granting anticipatory bail were issued by the
supreme court of India.

“The applicant must understand the term “reason to believe” in Section

438 which means that the applicant has to show the reasonable grounds that
he apprehends arrest. The vague and baseless beliefs will not suffice for the
test laid down to grant anticipatory bail.

1. The Court of Sessions or the respective High Court must apply its mind
while deciding whether the prima facie case is made out to grant
anticipatory bail.

2. An FIR is not a condition precedent for granting anticipatory bail.

3. Anticipatory bail can be granted even after an FIR is filed but arrest has not
been made.

4. The relief under Section 438 cannot be claimed after the arrest.

5. Anticipatory bail cannot be granted where there is a possibility of

collecting incriminating evidence from the person, and remand of the
person is necessary.

6. In cases of offences punishable by death or life imprisonment, anticipatory

bail should not be granted unless the court is satisfied of falseness of
charges.”

One significant limitation of anticipatory bail is that it cannot be granted as a "blanket"

protection against all potential offenses. In Gurubaksh Singh Sibbia, the Supreme Court
clarified that anticipatory bail must be related to specific accusations and cannot be used
as a general immunity from arrest for any offense that might arise in the future. The
courts must consider the specific facts of each case before granting bail.
In Shyam Sunder Beriwala v. State16, the Calcutta High Court reinforced this view, stating
that anticipatory bail cannot be granted for offenses that have not yet been committed.
The court must examine the circumstances surrounding the accusation to determine
whether anticipatory bail is warranted.

Comparing the provisions of the code to the BNSS pertaining to the anticipatory bail,
Section 482(1) of BNSS carried the original version of the code, which got amended in
2005. Proviso of Section 438(1) of the code are excluded from section 482 of BNSS so
did 438(1-A) and 438(1-B). Section 438(4) of the code resembles to the section 482(4) of
BNSS but for the part under the offence of rape, age of the women has been increased.
Previously tit was women under the age of 16, now it is made to 18.

16
1997 CRILJ 35