Dec 07,2022 | 14 min read

Understanding the Concept of Bail in India

Article 21 of the Indian Constitution guarantees the right to life and personal liberty. It guarantees the fundamental right to live with human dignity and personal liberty, which entitles persons to seek bail when detained by any law enforcement authority.

The 'Bail', particularly anticipatory bail, is based on the legal principle of "presumption of innocence," which means anyone accused of a crime is presumed innocent until proven guilty. This is a fundamental principle mentioned in Article 11 of the Universal Declaration of Human Rights.


Definition of Bail

The term 'bail' refers to the process of obtaining the release of an accused charged with certain offences by ensuring his future attendance in court for trial and compelling him to remain within the court's jurisdiction.

The term "bail" is not defined in the Criminal Procedure Code of 1973. Section 2(a) of the Cr.PC defines only the terms "Bailable Offense" and "Non-Bailable Offense." Section 436-450 of the Criminal Procedure Code contains provisions relating to bail and bail bonds.

According to Black's Law Dictionary, bail is "the security required by a court for the release of a prisoner who must appear at a future time." The goal of arrest is to deliver justice by bringing the accused before a court of law. However, if the same goal can be achieved without arresting him, there is no need to violate his liberty. As a result, the accused may be granted bail for conditional release.

Bailable offences 

According to Section 2(a) of the CrPC, a bailable offence is one that is classified as bailable in the First Schedule of the Code or under any other law. If an accused is charged with a bailable offence, he has the right to seek bail. If the accused is willing to provide bail, the police officer or any other authority has no right to reject it. A person accused of a bailable offence has the right to be released on bail under Section 436 of the CrPC 1973 at any time while under arrest without a warrant and at any stage of the proceedings.

Non-bailable offences

A non-bailable offence is defined as any offence that is not a bailable offence. A person accused of a non-bailable offence can't claim bail as a matter of right. A person accused of a non-bailable offence may be granted bail if the accused doesn't fall under the following conditions:

Ø  There are reasonable grounds to believe he committed an offence punishable with death or life imprisonment.

Ø  That the accused committed a cognizable offence and had previously been convicted of an offence punishable with death, life imprisonment, or imprisonment for seven years or more, or if the accused had been convicted on two or more occasions of a cognizable and non-bailable offence.

There are certain exceptions where the law gives special consideration to cases where the accused is a minor, woman, or sick person.


Different types of Bail


1.       Regular Bail

Section 436 allows a person accused of a bailable offence to be released on bail. Section 436 of the Cr.PC is a mandatory provision, and neither the court nor the police have any discretion in the matter. Anyone arrested for a bailable offence who is willing to provide bail must be released. The police have no other option but to release the accused on a personal bond or with sureties. In cases where the accused is unable to provide bail, the police officer must bring the accused person before the Magistrate within 24 hours of arrest, as required by section 57 of the Cr.P.C. Subsequently, when a person accused of an offence appears before a Magistrate and is willing to furnish bail, the Magistrate is required to release the accused person, and the only discretion available is to release the accused person on personal bond or a bond with sureties. The Magistrate cannot order the detention of someone who is willing to furnish bail with or without sureties, even if it is for the purpose of assisting the investigation.

Section 437 of the code provides provision for bail in the case of a non-bailable offence. This section gives the Court discretionary power to release an accused on bail in a non-bailable case. It specifies when bail will not be granted, when bail will be granted with specific conditions, and so on.


2.       Anticipatory Bail

Anticipatory bail application is filed before the arrest is made. It is also referred to as pre-arrest bail. This is a direct order from the Sessions or High Court to grant pre-arrest bail to an accused of a crime. When a person is in apprehension of being arrested, he or she can apply for anticipatory bail under section 438 of the CrPC.


3.       Default Bail

Default bail is also known as Mandatory bail. The provisions for default bail are found in Section 167(2), which states that if the investigation officer fails to file the charge sheet within a specific prescribed time, which is 90 days in cases of an offence punishable by death, life imprisonment, or imprisonment for a term of not less than ten years and 60 days for any other offence, the accused will then be released on bail if he is willing to take it. An investigation is a procedure or process that an investigating officer follows in order to gather evidence. The sole purpose of an investigation is to gather evidence against the accused person. Following completion of the investigation, the investigating officer files a final report pursuant to Section 173 of the Code, and if he fails to file the report within the above-mentioned time frame, the accused is released on default bail.  


4.       Interim Bail

The CrPC makes no mention of interim bail. The Hon'ble Supreme Court established the concept of interim bail in 2009, stating that interim bail be granted pending disposal of bail application because arrest and detention of a person may result in irreparable loss.

The misuse of interim bail was brought to the Supreme Court's attention in Rukmani Mahato vs the State of Jharkhand (2017). The apex court had expressed extreme displeasure with granting regular bail based on the superior court's pre-arrest/interim bail. Even if the superior court dismisses the anticipatory bail plea after further examination, the subordinate court's normal bail will continue to hold the field, rendering the superior court's final denial of the pre-arrest bail ineffective.


Cancellation of bail

According to Section 437(5) of the CrPC, the court that granted bail has the authority to revoke under certain conditions. According to Section 439(2), the Sessions Court, High Court, or Supreme Court may, suo moto, revoke the accused's bail and transfer him to custody. Under section 389(2), An appellate court may also cancel the accused's bail and order the accused to be arrested and sent to custody.


Need Free Legal Advice or Assistance Online?

For any Criminal Law related matter, please Post Your Requirement anonymously and get free proposals OR find the Best Criminal Law Lawyers and book a free appointment directly.


Prostitution: Legality and Morality in India

Man or Woman, Everyone is Human: Need for Gender Neutral Sexual Harassment Laws in India

Residential Status for Individuals under Income Tax Act


What is PAN?

Right to Terminate Pregnancy with Relevant Case Laws

Spreading Legal Awareness

Introduction to Tax Evasion



Team Lawyered

Lawyered is a legal tech initiative designed to change the way people interact with and within the legal industry. We believe that access to critical services like legal should be just a click away. Our team is working to bring legal online, making it cost effective, high quality and accessible for all.