Select a page

Law of Bail in India

criminal trial

So what is Bail? The word Bail is not defined in CrPC but it has to be understood as a concept. Bail means release of a person from custody of police and his delivery to the sureties who undertake to produce him in court upon appointed day. The jurisprudence of bail deals with the procedural aspects of criminal law in a welfare state. The courts play an important role in balancing two contradictory but important tasks of society being shielded from the ill-effects of persons alleged with criminal offences and on the other hand, the personal liberty of person to be safeguarded against ignominy of serving a prison term for an offence for which he is yet to be convicted.
Bail is a matter of right in a bailable offence however in case of a non-bailable offence, bail is a matter of Judicial Discretion. Thus, the provisions dealing with when bail may be taken in case of a non-bailable offence under CrPC lays down that where it appears that there are not reasonable grounds for believing that the accused has committed a non-bailable offence but further inquiry is still considered necessary, the accused may still be released on bail. There is no hard and fast rule and no inflexible principle governing such discretion. The only principle that is established is that there must be a judicial exercise of that discretion. {KN Joglekar v Emperor AIR 1931 All 504}. The Supreme Court of India has construed the scope and amplitude of the provisions dealing with when the bail may be given in a non-bailable offence and the special powers of High Court or Court of Session regarding Bail as specified under CrPC, 1973. The condition laid down for the grant of bail in case of a non-bailable offence under CrPC is sine qua non for granting bail even by High Court or Court of Session using its special powers under CrPC.
The basic rule is Bail not jail, except where there are circumstances suggestive of fleeing from Justice or thwarting the course of Justice {State of Rajasthan v Balchand, AIR 1977 SCC 2447}. The distinction between an ordinary order of bail and an order of Anticipatory Bail is that whereas the former is granted after arrest and therefore means release from custody of Police, the latter is granted in anticipation of arrest and therefore effective at the very moment of arrest {D.K. Ganesh Babu v P.T. Manokaran, 2007 CrLJ 1827}.
The following principles are to be adhered to while granting/refusing bail under section 437 CrPC as illustrated in Sidharth Vashishht v State of Delhi, 2004 CrLJ 684 (Del)
1. Bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it assigned by the law is of extreme severity.
2. Bail should be reused when the Court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment.
3. Bail should be refused if the course of Justice would be thwarted by the person who seeks the benignant jurisdiction of the court to be freed for the time being.
4. Bail should not be refused if there is likelihood of the applicant interfering with the witnesses for the prosecution or otherwise polluting the process of Justice.
5. Bail should be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit more serious offence while on bail.
Bail provision under CrPC are applicable after arrest and becomes effective from the moment of arrest. The complainant has no right to oppose bail of the accused and only the public prosecutor may oppose the bail application. A counsel representing the complaint may act under the instructions of the public prosecutor and oppose the bail application within the limitations provided by the code {All India Democratic Women’s Assn v. State(1998) CrLJ629(MAD)}. Where the accused is not released at the initial stage of his appearance in a court, he may still be released subsequently during investigation, inquiry or trial.

There is no express provision in CrPC that deals with cancellation of a bail granted, however, when a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, misuses liberty by indulging in similar criminal activity, interferes with course of investigation, attempts to temper with evidence of witnesses, threatens witnesses, attempts to flee to another country or goes underground, attempts to place himself beyond the reach of surety; it is well-settled that bail granted can be cancelled.
People sometimes get confused between Bail and Anticipatory Bail. One need to understand that Anticipatory Bail is an extraordinary remedy provided under different provision under CrPC. To know more about the same, please follow this link.

Notice Bail: As like with other bail terms, Notice bail is also not defined under CrPC. Also, this is no statutory provision for giving an accused protection of a Notice bail, however it is a Judicial practice in many states to provide Notice Bail to the persons having reasonable belief of a criminal offence registered against them in near future or FIR has been registered but arrest permission is yet to be sought against them. This bail enables an accused to move an application of an anticipatory bail before his arrest is made. There is no hard and fast rule for the amount of days of notice to be served by the Investigating office to the accused but generally, doesn’t go beyond seven days. An application is made to Court of Session as Anticipatory Bail, which is converted into a notice bail by the presiding officer thus providing benignant relief to the accused.
You can read about IPC 498A at 498A – Feature Page

For Landmark Bail Judgement, Click HERE
If you have any query related to gender biased laws join SahodarWhatsapp Groups by sending Whatsapp message “Subscribe” to Sahodar Trust No. 9811850498


  1. Premakar Mahanty May 30, 2017 Reply

    Excellent Discription

    • Author
      Shonee Kapoor June 7, 2017 Reply

      Thanks for the appreciation.

Leave a reply

Your email address will not be published. Required fields are marked *


This site uses Akismet to reduce spam. Learn how your comment data is processed.