MODULE 5- BAIL

 Bail bond, sureties, and permissible bail conditions

 Standards of judicial discretion in non-bailable cases
 Victims’ right to be heard
 The reality of “bail, not jail”: rights of under-trial prisoners
 Cancellation of bail
 Anticipatory bail
 Newer practices: transit bail and interim bail
Definitions:
(b) "bail" means release of a person accused of or suspected of commission of an
offence from the custody of law upon certain conditions imposed by an officer or
Court on execution by such person of a bond or a bail bond;
(d) "bail bond" means an undertaking for release with surety;
(e) "bond" means a personal bond or an undertaking for release without surety;
Bailable Offences Procedure
478. In what cases bail to be taken
(1) 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:
Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is
indigent and is unable to furnish surety, instead of taking bail bond from such person,
discharge him on his executing a bond for his appearance as hereinafter provided.
Explanation.—Where a person is unable to give bail bond within a week of the date of
his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is
an indigent person for the purposes of this proviso:
Provided further that nothing in this section shall be deemed to affect the provisions of
sub-section (3) of section 135 or section 492.
(2) Notwithstanding anything in sub-section (1), where a person has failed to comply with
the conditions of the bond or bail bond as regards the time and place of attendance, the
Court may refuse to release him on bail, when on a subsequent occasion in the same case
he appears before the Court or is brought in custody and any such refusal shall be without
prejudice to the powers of the Court to call upon any person bound by such bond or bail
bond to pay the penalty thereof under section 491.
Moti Ram v. State Of M.P

• miserable mason. the petitioner before us, could not afford to procure that huge sum or manage a
surety of sufficient prosperity. Affluents do not befriend indigents. For another, the magistrate made
an odd order refusing to accept the suretyship of the petitioner's brother because he and his assets
were in another district.
• ( 1 ) Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond without
sureties, a person undergoing incarceration for a non-bailable offence either as undertrial or as
convict who has appealed or sought special leave ? (2) If the Court decides to grant bail with
sureties, what criteria should guide it in quantifying the amount of bail, and (3) Is it within the power
of The court to reject a surety because he or his estate is situate in a different district or State ?
• The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to
the psychological and physical deprivations of jail life, usually under more onerous conditions than
are imposed on convicted defendants. The jailed defendant loses his job is he has one and is
prevented from contributing to the preparation of his defence. Equally important, the burden of his
detention frequently falls heavily on the innocent members of his family.
• The Gujarat Committee from which we quote extensively, dealt with this matter in depth:
• "The bail system, as we see it administered in the criminal courts to-day, is extremely unsatisfactory and
needs drastic change. In the first place it is virtually in possible to translate risk of non- appearance by the
accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to
prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an
accused from running away from justice and risk of financial loss is only one of them and that too not a
major one. The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project
and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of
the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination
against the poor since the poor would not be able to furnish bail on account of their poverty while the
wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford
to furnish bail. This discrimination arises even if the amount of the bail fixed by the Magistrate is not high,
for a large majority of those who are brought before the Courts in criminal cases are so poor that they would
and it difficult to furnish bail even in a small amount."(emphasis added) The vice of the system is brought out in the
Report:
• "The evil of the bail system is that either the poor accused has to fall back on touts and professional
sureties for providing bail or suffer pre-trial detention. Both these consequences are fraught with great
hardship to the poor. In one case the poor accused is fleeced of his moneys by touts and professional
sureties and sometimes has even to incur debts to make payment to them for securing his release; in the
other he is deprived of his liberty without trial and conviction and this leads to grave consequences, namely:
(1) though presumed innocent he is subjected to the psychological and physical deprivations of jail life; (2)
he loses his job, if he has one, and is deprived of an opportunity to work to support himself and his family
with the result that burden of his detention falls heavily on the innocent members of the family, (3) he is
prevented from contribution to the preparation of his defence; and (4) the public exchequer has to bear the
cost of maintaining him in the jail.
• Social Justice is the signature tune of our Constitution and the littleman in peril of losing his
liberty is the consumer of social justice. And the grant of bail can be stultified or made
impossibly inconvenient and expensive if the Court is powerless to dispense with surety or to
receive an Indian bailor across the district borders as good or the sum is so excessive that to
procure a wealthy surety may be both exasperating and expensive. The problem is plainly one
of human rights, especially freedom vis-a- vis, the lowly and necessitates the Supreme Court to
interdict judicial arbitrariness deprivatory of liberty and ensure "fair procedure" which has a
creative connotation after Maneka Gandhi [1978] 2 SCR 621. [338 C-F. 339 A-B]
• Bail covers release on one's own bond with or without sureties, as the legal literature, Indian
and Anglo- American on bail jurisprudence lends countenance and the need for liberal
interpretation in areas of social justice, individual freedom and indigent's rights justifies. When
sureties should be demanded and what sum should be insisted on are dependent on variables.
[344 G, 347 C]
• Art. 14 protects all Indians qua Indians, within the territory of India. Art. 350 sanctions
representation to any authority, including a Court, for redress of grievances in any language
used in the Union of India. Equality before the law implies that even a vakalat or affirmation
made in and State language according to the law in that State must be accepted everywhere
in the territory of India, same where a valid legislation to the contrary exists. Otherwise, an
Adivasi will be unfree in Free India, and likewise many other minorities. The process of making
Indians aliens in their own homeland should be inhibited. Swaraj is made out of united stuff.
The best guarantee of presence in Court is the reach of law, not the money tag. [347 G-H, 348
A-B, D] The Court left open to the Parliament to consider- whether in our socialist republic with
social justice as its hallmark, monetary supersti- 337 tion, not other relevant consideration like
family ties, roots in the community, membership of stable organisations should prevail or bail
bonds to ensure that the 'bailee' does not flee justice.]
Non-Bailable Offences Procedure

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

(1) When any person accused of, or suspected of, the commission of any 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
other than the High Court or Court of Session, he may be released on bail, but—
(i) 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 imprisonment for life;
(ii) 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, imprisonment for life or imprisonment for
seven years or more, or he had been previously convicted on two or more occasions of a cognizable
offence punishable with imprisonment for three years or more but less than seven years:
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if
such person is a child or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is
satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses
during investigation or for police custody beyond the first fifteen days shall not be sufficient ground for
refusing to grant bail if he 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:
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with
death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under
this sub-section without giving an opportunity of hearing to the Public Prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may
be, that there are not reasonable grounds for believing that the accused has committed a non-
bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall,
subject to the provisions of section 492 and pending such inquiry, be released on bail, or, at the discretion
of such officer or Court, on the execution by him of a bond for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment
which may extend to seven years or more or of an offence under Chapter VI, Chapter VII or Chapter XVII
of the Bharatiya Nyaya Sanhita, 2023 or abetment of, or conspiracy or attempt to commit, any such offence,
is released on bail under sub-section (1), the Court shall impose the conditions,—
(a) that such person shall attend in accordance with the conditions of the bond executed under this
Chapter;
(b) that such person shall not commit an offence similar to the offence of which he is accused, or
suspected, of the commission of which he is suspected; and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the
Court or to any police officer or tamper with the evidence,
and may also impose, in the interests of justice, such other conditions as it considers necessary.
(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall
record in writing his or its reasons or special reasons for so doing.
(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it
considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable
offence is not concluded within a period of sixty days from the first date fixed for taking
evidence in the case, such person shall, if he is in custody during the whole of the said period,
be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.
(7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence
and before judgment is delivered, the Court is of opinion that there are reasonable grounds for
believing that the accused is not guilty of any such offence, it shall release the accused, if he is
in custody, on the execution by him of a bond for his appearance to hear judgment delivered.
State of Rajasthan v. Balchand

• Triple test
• The basic rule may perhaps be tersely put as bail, not jail, except where there are
circumstances suggestive of fleeing from justice or thwarting the course of justice or
creating other troubles in the shape of repeating offences or intimidating witnesses and
the like, by the petitioner who seeks enlargement on bail from the court. We do not intend
to be exhaustive but only illustrative. It is true that the gravity of the offence involved is
likely to induce the petitioner to avoid the course of justice and must weigh with us when
considering the question of jail. So also the heinousness of the crime.
• This petitioner will be released on bail on his entering into a bond of his own and one
surety for Rs. 5,000/- to the satisfaction of the Additional District & Sessions Judge,
Baren. While the system- of pecuniary bail has a tradition behind it, the time has come for
rethinking on the subject. It may well be that in most cases not monetary suretyship but
undertaking by relations of the petitioner or organisation to which he belongs may be
better and more socially relevant. Even so, in this case we stick to the practice and direct
the furnishing of one surety for Rs. 5,000/-. Application for intervention allowed. S.R.
Bail granted.
Powers of HC and COS
483. Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct,—
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the
nature specified in sub-section (3) of section 480, may impose any condition which it considers
necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or
modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is
accused of an offence which is triable exclusively by the Court of Session or which, though not so triable,
is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor
unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice:
Provided further that the High Court or the Court of Session shall, before granting bail to a person who is
accused of an offence triable under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya
Sanhita, 2023, give notice of the application for bail to the Public Prosecutor within a period of fifteen
days from the date of receipt of the notice of such application.
(2) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing
of the application for bail to the person under section 65 or sub-section (2) of section 70 of the Bharatiya
Nyaya Sanhita, 2023.
(3) A High Court or Court of Session may direct that any person who has been released on bail under this
Chapter be arrested and commit him to custody.
Anticipatory Bail
• 482. Direction for grant of bail to person apprehending arrest.
(1) 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 the Court of Session for
a direction under this section; and that Court may, if it thinks fit, direct that in the event of such
arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may
include such conditions in such directions in the light of the facts of the particular case, as it may
think fit, including—
(i) a condition that the person shall make himself available for interrogation by a police officer
as and when required;
(ii) a condition that the 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;
(iii) a condition that the person shall not leave India without the previous permission of the
Court;
(iv) such other condition as may be imposed under sub-section (3) of section 480, as if the bail
were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station
on such accusation, and is prepared either at the time of arrest or at any time while in the custody
of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of
such offence decides that a warrant should be issued in the first instance against that person, he
Vipan Kumar Dhir v The State Of Punjab

• The challenge laid is to an order dated 28.01.2021 passed by the High Court of Punjab and Haryana whereby anticipatory
bail has been granted to Respondent No.2 (hereafter ‘Respondent ­Accused’), who is the mother­in ­law of the deceased and
is charged under Sections 304B, 302 read with 120B of Indian Penal Code (for short “I.P.C.”).
• Soon after the FIR was lodged, the Respondent­Accused moved an anticipatory bail application before the Sessions Court,
which was rejected on 21.12.2017. Discontented, the Respondent­Accused approached the High Court for a similar relief,
but the petition was dismissed as withdrawn on 08.03.2018. Meanwhile, on account of non­cooperation with the ongoing
investigation, the SHO of the concerned police station applied for and got issued arrest warrants against the Respondent ­
Accused from Judicial Magistrate. However, the arrest warrant could not be executed as the Respondent­Accused had been
on the run and she was thus declared an absconder on 23­ 04­2018 under Section 82 of the Code of Criminal Procedure (for
short, “Cr.P.C.”).
• The Respondent­Accused continued to evade her arrest until this Court granted anticipatory bail to her younger son Daksh
Adya (brother­in­law of the deceased) on 22.10.2019. Thereafter, taking advantage of this subsequent event and presenting
the same as a material change in circumstance, Respondent­Accused filed two petitions before the High Court, seeking
quashing of the order that declared her a ‘proclaimed offender’ and further sought the relief of anticipatory bail.
• It is noted explicitly that during the pendency of the above­mentioned proceedings, the High Court granted interim bail to
the Respondent­Accused on 03.12.2020 and pursuant thereto, she joined the investigation on 07.12.2020. Thereafter, vide
the impugned order, High Court allowed both the petitions and set aside the order declaring the Respondent ­Accused as an
absconder and also granted her anticipatory bail. These reliefs were primarily allowed on two grounds ­firstly that the
Respondent­Accused had joined the investigation and undertook to remain present at each date of trial proceedings;
secondly she was entitled to seek parity with the co­accused Daksh Adya whom this Court granted anticipatory bail.
• At the outset, it would be fruitful to recapitulate the well­settled legal principle that the cancellation of bail is to be dealt on a different footing in
comparison to a proceeding for grant of bail. It is necessary that ‘cogent and overwhelming reasons’ are present for the cancellation of bail.
Conventionally, there can be supervening circumstances which may develop post the grant of bail and are non­conducive to fair trial, making it
necessary to cancel the bail.
• bail can also be revoked where the court has considered irrelevant factors or has ignored relevant material available on record which renders the order
granting bail legally untenable. The gravity of the offence, conduct of the accused and societal impact of an undue indulgence by Court when the
investigation is at the threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail to prevent the miscarriage
of justice and to bolster the administration of criminal justice system. This Court has repeatedly viewed that while granting bail, especially
anticipatory bail which is per se extraordinary in nature, the possibility of the accused to influence prosecution witnesses, threatening the family
members of the deceased, fleeing from justice or creating other impediments in the fair investigation, ought not to be overlooked.
• Broadly speaking, each case has its own unique factual scenario which holds the key for adjudication of bail matters including cancellation thereof.
The offence alleged in the instant case is heinous and protrudes our medieval social structure which still wails for reforms despite multiple efforts
made by Legislation and Judiciary.
• 12. In the case in hand, the High Court seems to have been primarily swayed by the fact that the Respondent­Accused was coperating with
investigation. This is, however, contrary to the record as the Respondent­Accused remained absconding for more than two years after being declared a
proclaimed offender on 23.04.2018. She chose to join investigation only after securing interim bail from the High Court. She kept on hiding from the
Investigating Agency as well as Magistrate’s Court till she got protection against arrest from the High Court in the 2nd round of bail proceedings.
• 13. Even if there was any procedural irregularity in declaring the Respondent­Accused as an absconder, that by itself was not a justifiable ground to
grant pre­arrest bail in a case of grave offence save where the High Court on perusal of case­diary and other material on record is, prima facie, satisfied
that it is a case of false or over­exaggerated accusation. Such being not the case here, the High Court went on a wrong premise in granting anticipatory
bail to the Respondent­Accused.
• 14. The ground of parity with co­accused Daksh Adya invoked by the High Court is equally unwarranted. The allegations in the FIR against the
Respondent­Mother­in­Law and her younger son Daksh Adya are materially different. It is indubitable that some of the allegations against all the family
members are common but there are other specific allegations accusing the Respondent­Accused of playing a key role in the alleged offence.
• 16. In light of the above discussion and without expressing any views on merit, we set aside the impugned order of the High Court dated 28.01.2021
and direct the Respondent­Accused to surrender before the Trial Court within a period of one week.
 Sushila Aggarwal and Ors. Vs. State (NCT of Delhi) and Ors.

(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be
limited to a fixed period so as to enable the person to surrender before the Trial
Court and seek regular bail.
(2) Whether the life of an anticipatory bail should end at the time and stage when
the accused is summoned by the court.

The protection granted to a person Under Section 438 Code of Criminal Procedure
should not invariably be limited to a fixed period; it should be without any restriction
on time. Normal conditions Under Section 437(3) read with Section 438(2) should be
imposed; if there are specific facts or features in regard to any offence, it is open for
the court to impose any appropriate condition (including fixed nature of relief, or its
being tied to an event) etc.
The life or duration of an anticipatory bail order does not end normally at the time
and stage when the Accused is summoned by the court, or when charges are
framed, but can continue till the end of the trial. Again, if there are any special or
peculiar features necessitating the court to limit the tenure of anticipatory bail, it is
open for it to do so.
(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab, when a person complains of apprehension of arrest and
approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence.
The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends
arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its
gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved
only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.
(2) It may be advisable for the court, which is approached with an application Under Section 438, depending on the seriousness of the threat (of arrest)
to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
(3) Nothing in Section 438 Code of Criminal Procedure, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing
of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of
anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation,
or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be
justified - and ought to impose conditions spelt out in Section 437(3), Code of Criminal Procedure [by virtue of Section 438(2)]. The need to impose
other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the
investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine
manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or
cases; however, such limiting conditions may not be invariably imposed.
(4) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the
facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether
and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the
court.
(5) Anticipatory bail granted can, depending on the conduct and behavior of the Accused, continue after filing of the charge sheet till end of trial.
(6) An order of anticipatory bail should not be "blanket" in the sense that it should not enable the Accused to commit further offences and
claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in
relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.
(7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate
into the charges against the person who seeks and is granted pre-arrest bail.
(8) The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority,
would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact,
which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the
Accused to separately surrender and seek regular bail. Sibbia (supra) had observed that
"if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a dis
covery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State
of U.P. v. Deoman Upadhyaya.
(9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction Under
Section 439(2) to arrest the Accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion,
intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.
(10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.
(11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating
agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam &
Etc. Etc v. Ramprasad Vishwanath Gupta and Anr. Jai Prakash Singh (supra) State through C.B.I. v. Amarmani Tripathi). This does not
amount to "cancellation" in terms of Section 439(2), Code of Criminal Procedure.
(12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. (and other similar judgments) that no restrictive
conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision
in Salauddin Abdulsamad Shaikh v. State of Maharashtra and subsequent
decisions(including K.L. Verma v. State and Anr. , Sunita Devi v. State of Bihar and Anr., Adri Dharan Das v. State of West Bengal , Nirmal Jee
t Kaur v. State of M.P., HDFC Bank Limited v. J.J. Mannan , Satpal Singh v. the State of Punjab and Naresh Kumar Yadav v. Ravindra Kumar)
which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.
 R ig h ts o fu n d e rtia lp ris o n e rs

479. Maximum period for which undertrial prisoner can be detained.

(1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an
offence under any law (not being an offence for which the punishment of death or life
imprisonment has been specified as one of the punishments under that law) undergone
detention for a period extending up to one-half of the maximum period of imprisonment
specified for that offence under that law, he shall be released by the Court on bail:
Provided that where such person is a first-time offender (who has never been convicted of any
offence in the past) he shall be released on bond by the Court, if he has undergone detention
for the period extending up to one-third of the maximum period of imprisonment specified
for such offence under that law:
Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be
recorded by it in writing, order the continued detention of such person for a period longer than
one-half of the said period or release him on bail bond instead of his bond:
Provided also that no such person shall in any case be detained during the period of
investigation, inquiry or trial for more than the maximum period of imprisonment provided for
the said offence under that law.
Explanation.—In computing the period of detention under this section for granting bail, the
period of detention passed due to delay in proceeding caused by the accused shall be
excluded.
(2) Notwithstanding anything in sub-section (1), and subject to the third proviso thereof, where an
investigation, inquiry or trial in more than one offence or in multiple cases are pending against a
person, he shall not be released on bail by the Court.
 Satender Kumar Antil v. CBI (2022)- Antil Trilogy
• Satender Kumar Antil, an accused in a corruption case filed by the CBI, was not arrested during the investigation. After the
CBI filed a chargesheet, the trial court took cognizance and issued summons for his appearance. Instead of appearing,
Antil sought anticipatory bail, fearing arrest due to a common practice, particularly in states like Uttar Pradesh, where
accused individuals are taken into custody post-chargesheet despite cooperating during investigations. His anticipatory bail
was rejected, and a non-bailable warrant was issued, prompting him to approach the Supreme Court via a Special Leave
Petition (SLP).
• Key Issues
• The Supreme Court identified a systemic problem: unnecessary arrests and custodial detention after chargesheet filing,
even when the accused had not been arrested during the investigation and had cooperated fully.
• 1. Unnecessary Arrests Should Be Avoided
The Court reiterated the principles from Arnesh Kumar v. State of Bihar (2014) that arrest should not be automatic and
must be based on necessity.
It observed that many accused persons languish in jail due to non-consideration of bail applications.
 Category Nature of Offense Bail Considerations
Bail should generally be granted, and the
A Offenses punishable with less than 7 years accused should not be arrested unless
necessary.
Bail should be granted based on the
B Offenses punishable with more than 7 years seriousness of the offense and the likelihood
of the accused fleeing.
Bail should be granted considering the
Economic offenses (e.g., under Prevention of
C nature of the financial crime, impact on the
Corruption Act, Money Laundering Act)
economy, and evidence strength.
These laws have stricter bail conditions, and
D Special laws (e.g., UAPA, NDPS, PMLA) bail should be granted only if the accused
meets the requirements under those laws.
3. Right to Default Bail Must Be Ensured
 The Court reinforced that default bail under Section 167(2) CrPC is a statutory right, not discretionary.
 If the investigation is not completed within the prescribed time (60 or 90 days depending on the offense), the
accused must be granted default bail.
4. Bail is the Rule, Jail is the Exception
 The Court emphasized that pre-trial detention should be minimized and courts must avoid keeping
undertrial prisoners in jail unnecessarily.
 Bail should be granted unless the accused is likely to abscond, tamper with evidence, or influence
witnesses.
5. Need for Bail Law Reforms in India
 The Court called for systematic reforms in bail laws and stressed that courts and investigating agencies
must stop the practice of unnecessary arrests.
• 6. Application of Section 436A CrPC
 Release After Serving Half the Maximum Sentence: The Court emphasized the use of Section 436A of the Code of Criminal Procedure
(CrPC), which allows undertrials to be released on bail if they have been detained for half the maximum possible sentence for the offence they
are charged with, except in cases punishable by death. For example:
o If the maximum punishment is 7 years, an undertrial detained for 3.5 years becomes eligible for release.
o This does not apply to offences carrying the death penalty unless exceptional circumstances justify relief.
 Mode of Release: Such undertrials may be released on a personal bond (without sureties) or with reasonable conditions, ensuring accessibility
regardless of financial status.
 Proactive Identification: The Court directed jail authorities and state governments to identify undertrials eligible under Section 436A and
process their release expeditiously, reducing delays caused by administrative inertia.
• 7. No Automatic Custody Post-Chargesheet
 Protection from Unnecessary Detention: For undertrials who were not arrested during the investigation and cooperated fully, the Court
ruled that they should not be taken into custody merely because a chargesheet has been filed. This protects undertrials from being detained as
a matter of routine rather than necessity.
 Summons Over Arrest: Courts must issue summons or bailable warrants initially, ensuring undertrials remain at liberty unless they fail to
comply or pose a specific risk (e.g., absconding, tampering with evidence).
• 8. Expedited Bail Hearings
 Two-Week Timeline: The Court mandated that bail applications for undertrials be decided within two weeks of filing, barring exceptional
circumstances (e.g., complex cases requiring additional hearings). This prevents prolonged detention due to judicial delays, safeguarding
undertrials’ right to a speedy trial and liberty.
 Reasoned Decisions: Courts denying bail must provide written reasons, ensuring transparency and accountability, which protects undertrials
from arbitrary or mechanical refusals.
• 9. Compliance with Arrest Safeguards
 Sections 41 and 41A CrPC: The Court reinforced that undertrials benefit from strict adherence to arrest provisions:
o Arrests should only occur when “necessary”, with police recording reasons. Non-compliance entitles the undertrial to bail.
o For offences with less than 7 years imprisonment, a notice of appearance must precede arrest. Violation of this norm strengthens an undertrial’s case for
release.
 Safeguard Against Illegal Detention: If an undertrial’s initial arrest violated these provisions, courts were directed to grant bail, reinforcing their right to
protection from unlawful custody.
• 10. Decongestion of Prisons
 Systemic Relief: Recognizing that over two-thirds of India’s prison population comprises undertrials, the Court directed states to:
o Conduct periodic reviews of undertrial detention cases.
o Establish mechanisms (e.g., undertrial review committees) to identify and release those detained unnecessarily, such as for minor offences or due to inability
to furnish bail bonds.
 State Accountability: High Courts were tasked with monitoring compliance, ensuring undertrials are not forgotten in overcrowded jails.
• 11. Reasonable Bail Conditions
 Proportionality: The Court directed that bail conditions imposed on undertrials (e.g., surety amounts, reporting requirements) must be reasonable and tailored to
their socio-economic circumstances. This prevents undertrials from remaining in custody simply because they cannot meet onerous conditions, upholding their
right to equality and liberty.
 Personal Bond Option: In cases of financial hardship, courts were encouraged to release undertrials on personal bonds without requiring sureties.
• 12. Monitoring and Implementation
 High Court Oversight: The Supreme Court assigned High Courts the responsibility of ensuring these rights are enforced at the trial court level. This includes
reviewing undertrial detention statistics and addressing prolonged incarcerations.
 Training and Sensitization: The Court suggested training for police, jail officials, and magistrates to align their practices with undertrial rights, reducing
instances of overreach or neglect.
• Subsequent Orders (2022-2025)
• Later orders clarified that the guidelines aimed to ease bail access, not restrict it, and rejected the notion that
chargesheet filing alone justifies arrest. The Court also pushed for faster bail hearings, compliance monitoring by High
Courts, and relief for undertrials under Section 436A CrPC (release after serving half the maximum sentence for the
offence).
• In essence, Satender Kumar Antil v. CBI is a transformative decision that seeks to decongest jails, curb arbitrary
arrests, and uphold the presumption of innocence in India’s criminal justice system.

• Impact on Undertrial Prisoners:

• ✅ Reduces overcrowding in jails by ensuring unnecessary arrests are avoided.
✅ Prevents long pre-trial detentions for those accused of minor offenses.
✅ Ensures fair treatment of economic and special law offenders while still allowing
necessary restrictions for serious cases.
✅ Strengthens judicial accountability by making courts responsible for proper bail
decisions.
Practicalities of bail bonds and release from jail

484. Amount of bond and reduction thereof.

(1) The amount of every bond executed under this Chapter shall be fixed with due regard to the
circumstances of the case and shall not be excessive.
(2) The High Court or the Court of Session may direct that the bail required by a police officer or
Magistrate be reduced.
485. Bond of accused and sureties.
(1) Before any person is released on bond or bail bond, a bond for such sum of money as the police
officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he
is released on bond or bail bond, by one or more sufficient sureties conditioned that such person
shall attend at the time and place mentioned in the bond, and shall continue so to attend until
otherwise directed by the police officer or Court, as the case may be.
(2) Where any condition is imposed for the release of any person on bail, the bond or bail bond shall
also contain that condition.
(3) If the case so requires, the bond or bail bond shall also bind the person released on bail to appear
when called upon at the High Court, Court of Session or other Court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept
affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties,
or, if it considers necessary, may either hold an enquiry itself or cause an inquiry to be made by a
Magistrate subordinate to the Court, as to such sufficiency or fitness.
• 486. Declaration by sureties.
Every person standing surety to an accused person for his release on bail, shall make a
declaration before the Court as to the number of persons to whom he has stood surety including
the accused, giving therein all the relevant particulars.
• 487. Discharge from custody.
(1) As soon as the bond or bail bond has been executed, the person for whose appearance it has
been executed shall be released; and, when he is in jail, the court admitting him to bail shall issue
an order of release to the officer in charge of the jail, and such officer on receipt of the orders shall
release him.
(2) Nothing in this section, section 478 or section 480, shall be deemed to require the release of
any person liable to be detained for some matter other than that in respect of which the bond or
bail bond was executed.
• 490. Deposit instead of recognizance.
When any person is required by any Court or officer to execute a bond or bail bond, such Court or
officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of
money or Government promissory notes to such amount as the Court or officer may fix in lieu of
executing such bond.