Bail

Bail: Concept, purpose

and constitutional
overtone
Generally, CHAPTER XXXIII
--PROVISIONS AS TO BAIL AND BONDS
Sec. 436-450 CRPC
Bail
Meaning
Term “bail” has not defined in the Code.
In Gurbaksh Singh v. State of Punjab AIR 1980 SC 1632 it was held by
Supreme Court that grant of bail means to set at liberty a person arrested or
imprisoned, on security being taken for his appearance.
In Moti Ram v. State of M.P, AIR 1978 SC 1594 it was held that it is a
process to set a person free who is under arrest or detention by taking
security for his appearance. The expression 'bail' covers both release on
one's own bond, with or without sureties.
 balancing two conflicting concepts

The law of bail has to balance two conflicting concepts.

1. On one hand there is a solemn principle of criminal law that the
accused is presumed to be innocent until proven guilty and
2. on the other hand there is a requirement for the society that it has to
be shielded from criminals.
Supreme Court in Gudikanti v. Public Prosecutor, AIR 1978 SC 429 held that
basic rule should be 'bail not jail' except where there are
circumstances suggesting accused fleeing from justice, possibility of repeating
the offences and like.
Object of Bail-[Sunil Fulchand v. Union
of India, AIR 2000 SC 1023].
Object:
Personal liberty is one of the most valuable Fundamental Right given
under the Constitution.

The principle underlying the release on bail is that the accused is

presumed innocent until proven guilty.
A person released on bail is considered to be in constructive custody of
the Court.
 Principle regarding bail:
The principle behind grant of bail in criminal cases is based on two factors:

1. The State is duty bound to protect the interest of society at large and save
it from criminals.

2. The person is presumed innocent until proved guilty and he cannot be

deprived of his right to liberty unless there are grounds for doing so.

The Code has classified offences into bailable and non-bailable.

In bailable offence the accused gets the as a matter of right
while in a non-bailable offence the grant of bail is at the discretion of the
court.
 When Bail may be
granted as a
matter of right
Sec.
436,436A,167(2),437(2),437(6),437(7),
330(1),389(3)
1. Persons Accused of Bailable offences. (SS
436)
As per Sec 436 (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:
The police officer or court instead of taking bail from such person, may
even release him on executing a bond without sureties, Hence,
an bailable offence accused can be released both by the court and by
police officer
.
• Section 436(2) further says that where a person so released has failed
to comply with the conditions of the bail as regards the time and
place of attendance, the court may refuse to release him on bail,
when on Subsequent occasion in the same case he appears or is
brought in custody before the court.
• It means that once a bail has been granted in a bailable offence the
accused loses his right to bail subsequently in the sane case, if he fails
to comply with the conditions of bail.
 ..
• Proviso to Section 436(1) of the Code provides that if the person is indigent
person then the Court or the police officer shall, instead of taking bail from such
person, discharge him on his executing a bond without sureties.

Explanation to Section 436(1) has been added by Amendment Act of 2005. It

provides that where the person is unable to give bail within a week of his date of
arrest, it shall be sufficient ground for the officer or the court to presume that he is
an indigent person for the purpose of this proviso.
2. Maximum period of detention for an
undertrial (S. 436A)
• Section 436A, added by Amendment Act of 2005, provides if that a person
(not accused of an offence carrying death penalty) during the period of
investigation, inquiry or trial has undergone detention
for a period extending up-to one-half of the maximum period of
imprisonment specified for the offence under that law, he shall be
released by the court on his personal bond with or without sureties.
.
• The court may order continued detention of such person, after
hearing the public prosecutor and for reasons to be recorded in
writing, even longer than half of the said period.
• In any case, the person shall not be detained, during the period of
investigation, inquiry or trial, for more than maximum period of
imprisonment provided for the offence under the law.
3. When investigation is not complete within
prescribed period (Sec. 167(2))
• Section 167(2) provides that where a person is in custody and the
investigation is not completed within:
• Ninety days (where investigation relates to offence punishable with
death, imprisonment for life or imprisonment for 10 years or more);
or
• Sixty days (where investigation relates to any other offence)
• then the person is entitled to get bail as a matter of right after expiry
of such period.
He should be ready to furnish bail and agree to the conditions of the
bail. Every person released under this section shall be deemed to be
released under Chapter XXXIII [relating to bails) of the Code.
3.Neccessity of further investigation but no reasonable
ground far believing that accused has committed
non-bailable offence. (Sec. 437(2))

• Sec 437(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 be released on bail on the execution by him of a
bond without sureties for his appearance after recording reason to
that effect.
 4. When the trial is not Over within prescribed
period (Sec. 437(6))
• Sec 437(6) provides that
• 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.
5. There are reasonable grounds for
believing that the accused is not guilty. Sec.
437(7)
• Sec. 437(7) provides that
• 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 without sureties for his appearance to hear judgment
delivered.
6. [Sec.330(1). Release of person of unsound mind
pending investigation or trial.—
• Whenever a person if found under section 328 or section 329 to be
incapable of entering defence by reason of unsoundness of mind or
mental retardation,
• the Magistrate or Court, as the case may be shall, whether the case
is one in which bail may be taken or not, order release of such person
on bail:
• Provided that the accused is suffering from unsoundness of mind or
mental retardation which does not mandate in-patient treatment and
a friend or relative undertakes to obtain regular out-patient
psychiatric treatment from the nearest medical facility and to prevent
from doing injury to himself or to any other person.
 7. (Sec.389. Suspension of sentence pending the
appeal; release of appellant on bail)
• Sec 389(3) provides that
• Where the convicted person satisfies the Court by which he is convicted that he
intends to present an appeal,
• the Court shall,— (i) where such person, being on bail, is sentenced to
imprisonment for a term not exceeding three years, or
• (ii) where the offence of which such person has been convicted is a bailable one,
and he is on bail,
• order that the convicted person be released on bail, unless there are special
reasons for refusing bail, for such period as will afford sufficient time to present
the appeal and obtain the orders of the Appellate Court under sub-section (1);
• and the sentence of imprisonment shall, so long as he is so released on bail, be
deemed to be suspended
 Bail in
non-baila
ble
offences
(Sec.437 & 439
CRPC)
 ..
• Section 437 and 439 provides for the provisions relating to grant ot bail in
non-bailable cases
• Section 437 deals with the courts of Magistrates while Section 439 deals with
Court of Session and High Court.
• Section 437 uses the word 'may'. The use of word 'may’ dearly indicates that the
court has discretion in granting bail.
• Supreme Court in Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280 held that
• if the prescribed punishment is imprisonment for life or death and
• the offence is exclusively triable by the Court of Sessions,
• then the Magistrate has no jurisdiction to grant bail unless the case is covered by
proviso appended to Section 437.
Sec. 437(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 not less than seven years:]
 Special provisions for child women, sick or infirm person (Proviso to
Sec.437(1))
• 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 under the age of sixteen years or is
a woman or is sick or infirm: (1st proviso)
• 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. (2nd Proviso)
• The above provisions are also directory not mandatory as they use the word “
may”.
• Provided also that the mere fact that an accused person may be required for
being identified by witnesses during investigation 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:] (3rd Proviso)
an opportunity of hearing to the Public
th
Prosecutor (4 Proviso to Sec. 437)
• 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
 Bail with Conditions (Sec.437(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 XVI or Chapter XVII of the Indian Penal Code (45 of
1860) or abatement 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.]
Considerations
for grant of bail
in non-bailable
offences
• Grant of bail in non-bailable offences is a matter of discretion.
• Discretion needs to be exercised on sound judicial principles and in a
reasonable manner.
• It is to be remembered that object of detention pending criminal
proceedings is not punishment and the bail is a rule and jail is an
exception
• Cout granting the bail should exercise its discretion in a judicious
manner and not as a matter of course.
• At this stage detailed examination of evidence need not be
undertaken.
 ..
• Supreme Court in Prasad Srikant Purohit v. State of Maharashtra, (2018) 11
SCC 458 and most of other decisions laid down following factors that should be
considered before granting bail:

• (a) The nature of accusation and severity of punishment in case of conviction.

• (b) Reasonable apprehension of tampering with the witness or apprehension of

threat to complainant.

• (c) Prima facie satisfaction of the court in support of the charges.

There is no hard and fast rule which has to be followed while granting or rejecting
bail.
 ..
Supreme Court in Gurucharan Singh v. State, AIR 1978 SC 179 has held that following factors are relevant
in deciding whether to grant or refuse bail [see also Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12
SCC 129]
1. Nature and gravity of offence;
2. Severity of punishment;
3. Nature of evidence in support of accusation;
4. Antecedents of the accused;
5. Danger of evidence and witnesses being tampered with;
6. Possibility of accused fleeing from justice,
7. Position of accused with reference to the victim;
8. Likelihood of repeating offence;
9. Health, age and sex of the accused
10. Circumstances in which crime was committed etc.
The Supreme Court in above mentioned case held that likelihood of accused fleeing from justice and
tampering with prosecution evidence and witnesses are two paramount considerations while deciding
bail.
Proper consideration and weight should be given to them apart from other factors.
Powers of
High
Court and
Sessions
Courts
Sec.439
CRPC

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Sec. 439. Special powers of High Court or
Court of Session regarding bail.—
Sec.439(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 437, 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:
Sec.439 (1) (Proviso 1)

• 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.
Sec.439 (1) (Proviso 2)
• [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 sub-section (3) of section 376 or section 376AB or section
376DA or section 376DB of the Indian Penal Code (45 of 1860),
• 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.]
Sec.439 (1A) & (2)
• [(1A) 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 sub-section (3) of section 376 or section 376AB or
section 376DA or section DB of the Indian Penal Code (45 of 1860).]
• (2) 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.– Cancellation of Bail (see also Sec.437(5))
Anticipator
y Bail
Sec.438 CRPC
• Section 438 deals with the provisions relating to anticipatory bail.
• It empowers High Court and Sessions Court to grant anticipatory bail.
• Meaning: The term 'anticipatory bail' has not been defined in the Code.
The bail is granted in anticipation of arrest. When anticipatory bail is
granted, then in the event of arrest the person arrested is releasedon bail.
• Also known as pre-arrest bail.
• Only after arrest the order granting anticipatory bail becomes operative.
[Union of India v. Padam Narain, (2008) 13 SCC 305].
• The whole framework of anticipatory bail has been revised by Amendment
Act of 2005.
 Who can grant anticipatory bail and when can it be granted?
• According to Section 438 High Court and Court of Session can grant anticipatory bail.
• The person applying for grant of anticipatory bail must have 'reason to believe' that
he may be arrested.
• Such reason must be founded on reasonable ground and it should not be mere fear.
• Supreme Court in Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632
observed that the applicant must show that he has 'reason to believe' that he may
be arrested in a non-bailable offence.
• Use of the expression 'reason to believe' shows that it must be founded on some
reasonable grounds. It should not be some sort of vague apprehension.
• Anticipation of such arrest must be in respect of a non-bailable offence.
• it is immaterial whether the offence is cognizable or non-cognizable.
• It is also irrelevant whether the offence is under Indian Penal Code or any other law.
factors which are to be taken into consideration while granting anticipatory bail.

• Section 438(1) lays down certain factors which are to be taken into
consideration while granting anticipatory bail.
• These factors are:-
I. Nature and gravity of the accusation
II. Antecedents of the applicant including the fact as to whether he
has previously undergone imprisonment on conviction by a Court
in respect of any cognizable offence;
III. Possibility of applicant to flee from justice;
IV. Whether the accusation has been made with the object of injuring
or humiliating the applicant by having him so arrested.
Brief procedure of granting/rejecting anticipatory bail
• The High Court or Court of Session may, after considering the factors given in Section 438(1), either
reject the application forthwith or issue an interim order for grant of anticipatory bail. [Interim
Bail]- Sec. 438(1)

• Section 438(1A) inserted by Amendment Act of 2005 provides that when the court grants interim
order for anticipatory bail it shall forthwith issue a notice of not less than seven days to Public
Prosecutor and Superintendent of Police, with a view to give Public Prosecutor a reasonable
opportunity of being heard.

• Section 438(1B) inserted by Amendment Act of 2005 further provides that presence of the
applicant seeking anticipatory bail shall be obligatory at the time of final hearing if on the
application made by the Public Prosecutor the court considers such presence necessary.
• Although Sec.438(1)-as amended in 2005 and sec. 438 (1A)& (1B) – as inserted in 2005 have not
been made effective till date, however courts are guided by spirit of these provisions in deciding
Bail application u/s 438.
• Effectively therefore unamended sec. 438 (1) still holds ground which reads as under:
“ 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.”
 Conditional order
Section 438(2) provides that court may include such conditions in the order as it may
think fit in the light of facts and circumstances of the case.
These conditions may include:
I. That the person shall make himself available for interrogation by a police
officer as and when required;
II. 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. That the person shall not leave India without the previous permission of
the court;
IV. Such other conditions as may be imposed under Section 437 (3).
Principles with regard to anticipatory bail-
Gurubaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565
Supreme Court in Gurubaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 laid down
following principles in respect of anticipatory bail-

• Registration of FIR is not a condition precedent to exercise the power under Section
438:

• Interim order can be passed without notice to the Public Prosecutor but before passing
the final order notice must be given;

• Order under Section 438 would not affect the right of police to conduct investigation:

• Where a case has been made for remand under Section 167(2) or reasonable claim to
secure incriminating material under section 27 of the evidence Act, the power under
Section 438 should not be exercised;

• Blanket order of anticipatory bail should not be made.

Concept of Limited Custody
• Supreme Court in Gurubaksh Singh Sibbia's case observed that court
while granting anticipator bail can impose appropriate conditions to
ensure uninterrupted investigation.

• One of such conditions is concept of ‘limited custody’ for fulfilling the

purpose of Section 27 of Indian Evidence Act.
• In the event police makes out a case for discovery under Section 27
of Evidence Act, the person granted anticipatory bail shall be liable to
be taken in custody for facilitating discovery.
 Sushila Aggarwal v. State (NCT of Delhi) and another (decided in
2019)
• Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another,
(decided in 2019) held that
• Anticipatory bail should not be limited to a fixed period.
• But if there are special or peculiar circumstances, the court may limit the tenure
of anticipatory bail.
• The protection granted under Section 438 should be in favour of accused
without any restriction of time.
• Court also clarified that the lite of anticipatory bail order does not end normally
at the time when accused is summoned or charges are framed. It continues till
the end of trial except in peculiar conditions.

• The order of anticipatory bail should not be a 'blanket order' in the sense that it
should not enable the accused to commit further offence and claim protection
from arrest.
• It should be confined to offence or incident for which apprehension of arrest is
sought. It cannot operate in respect of future incidents.
Changes brought by Amendment Act of 2018
• Amendment Act of 2018 inserted clause (4) to Section 438.
• It provides that the provisions of Section 438 shall not be applicable
to any person who has been accused of committing an offence under
Sections 376(3), 376-AB, 376-DA, 376-DB of the Indian Penal Code.
Cancellation
of Bail
Sec. 437(5)
and 439(2)
CRPC
..
• If the person released on bail tries to interfere in the conduct of
investigation, inquiry or trial or tries to violate the conditions of the
bail then in such circumstances the bail may be cancelled.
• Section 437(5) empowers the court which granted the bail (i.e.
magisterial court) to cancel if it considers necessary to do so and
direct the person may be arrested and commit to custody.
• Similarly Section 439(2) authorizes High Court and Court of Sessions
to arrest any person released on bail and commit him to custody.
• It is interesting to note that the bail granted by police can not be
cancelled by magisterial court u/s437(5)CRPC. In such cases recourse
is had to sec. 439 (2) CRPC
State (Delhi Administration) v. Sanjay Gandhi, (1978) 2 SCC 411
• Supreme Court in State (Delhi Administration) v. Sanjay Gandhi, (1978) 2 SCC 411 held
that rejection of bail when bail is applied is one thing and cancellation of bail is
another.
• It is easier to reject a bail in non-bailable cases than to cancel the bail once granted.
• Cancellation of bail involves reviewing the earlier decision granting bail. It should be
sparingly exercised and only in supervening circumstances.

X v. State of Telangana, (2018) 16 SCC 511]

• Rejection of bail in a non-bailable cases at the initial stages and cancellation of bail so
granted have tobe considered and dealt with on different basis.
• Very cogent and overwhelming circumstances are necessary for order directing
cancellation of bail.
• Bail once granted should not be cancelled in a mechanical and routine manner.
• Supervening circumstances should be considered before cancelling bail.
Considerations for cancellation of Bail
• Supreme Court in Raghubir v. State of Bihar, (1986) 4 SCC 481 laid
down the following circumstances where the bail can be cancelled:
Where the accused :-
• Hampers investigation;
• Tampers with evidence;
• Commits same or similar offence;
• Absconds or goes beyond the control of sureties
• Misuses liberty granted to him