Concept of Bail under Indian Legal System

Concept of Bail under Indian Legal System

Author : Mohd Aqib Aslam Ph.d Research Scholar, Jammu University


The term “Bail” has not been defined in the Criminal Procedure Code. It is a process by which a person arrested is released from the custody or detention. Bailable offence is one in respect of which a person arrested is entitled to be released on bail.[1] A person is said to be admitted a bail when he is released from the custody of officers of law and entrusted to private custody of person called his bail.

The dictionary meaning of the bail is “to release a person from the custody or prison or detention or under some kinds of restraint and deliver him into the hands of sureties is called bail, who bind themselves for his due appearance when required. Bail is basically released from restraint, more particularly, release from the custody of police.

Whether release on bail is mandatory.

The question is whether the release of arrestee (i.e. the attested person) is mandatory. It is mandatory to the following circumstances:

1. Not accused of non-bailable offence (Section 436 (1)):

Where the person arrested without warrant is not accused of a non-bailable offence and is prepared to give bail, the authority is required to release him on bail. He may be released on bond without sureties.

The right to claim bail granted by section 436 in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Section 436 are imperative.[2]

It is true that the Supreme Court does not interfere with an order granting bail but judicial discipline will be sacrificed at the alter of judicial discretion if jurisprudence under article 136 is refused to be exercised.[3]

2. Investigation incomplete (Section 167):

According to Section 57 of the Cr. P.C, a person arrested cannot be detained for more than 24 hours. Within 24 hours he should be presented before the magistrate. The detention can be extended beyond 24 hours for the purpose of investigation after obtaining a special order from the magistrate (Section 167).

However, the period shall not exceed 90 days in case of investigation relating to an offence punishable with life imprisonment or death sentence imprisonment in a term of not less than 10 years and 60 days in case of other offence. If the investigation is not completed within the prescribed period of 60 or 90 days as above, the person detained shall be released on bail.

3. No ground to believe to be non-bailable (Section 437(2)):

If there is no reasonable ground to believe at any stage of investigation of inquiry or trial that the accused had committed a non bailable offence, in such situation, the accused shall be released on bail against a bond without sureties. But accused charged with serious offence by itself not ground to deny him bail, if there are other circumstances justifying grant of bail.[4]

4. Trial incomplete within 60 days (Section 437(6)):

Where the trial by a magistrate is not concluding within 60 days in respect of a person accused of non bailable offence such person subject to the satisfaction of the magistrate shall be released on bail.

5. No ground to believe guilt after trial, but before the judgment (Section 437(7)):

If after conclusion of trial, but before judgment, there is no reasonable ground to believe the guilt, the accused shall be released on bail on execution of bond.

Anticipatory bail (Section 438)

Section 438 of the code empowered the High Court and the Court of Session to grant anticipatory bail. The term anticipatory bail is a misnomer because what Section 438 contemplates is not anticipatory bail, but merely an order releasing the accused on bail in the event of his arrest.

It is an order or direction of the court to release a person on bail issued even before the person is arrested.

It is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.[5] Section 438 of the Criminal Procedure Code, empowers a court of session and the high court to grant bail in cases of anticipated accusation of non-bailable offences. Section 18 of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, excludes the application of Section 438 of the Cr.P.C to offences committed under this Act.[6] The Supreme Court upheld the impugned Section and held that it did not violate Article 21. The court held anticipatory bail was not an essential part of right to life enshrined in article 21.[7]


Section 438 of Cr. P.C contemplates that;

1. The applicant has a reason to believe that:

a) He may be arrested.

b) Such arrest may be in respect of a non bailable offence, the High court or the court of session, may in its discretion, direct that in the event of arrest, the person shall be released on bail.

2. The High Court or Court of Session may impose the following conditions on the person seeking Anticipatory bail:

a) The person must make himself available as and when required for investigation by police etc.

b) He shall not make any inducement, threat or promise to any person for dissuading him from disclosing facts of the case.

c) He shall not leave India without prior permission of the court.

d) Such other conditions as the court may think tit.

3. If at magistrate taking the cognizance of such offence decides to issued attest warrant against such person, he shall issue a bailable warrant is conformity with Section 430(1).


Right to Bail is fundamental right guaranteed under Article 21 of the Constitution of India but in Code of Criminal Procedure it is not defined but it is a process mentioned under code.

Bail act as an instrument, for providing accused proper time to defend his side. Bail is granted by court after analyzing facts, circumstances of each case, nature of offence, and conduct of the accused in prison.

The court exercise their discretion power i.e. in a judicious manner and not  as a matter of course.

[1] Section 2 (a), The Code Of Criminal Procedure, 1973. The Criminal Law (Amendment) Act, 2018 (22 of 2018).

[2] Rasiklal v. Kishore Khanchand Wadhwani, A.I.R. 2009 S.C. 1341 (India).

[3] State of Maharashta v. Captain Buddhikota Subha rao, A.I.R. 1989 S.C. 2292 (India).

[4] Seema Singh v. Central Bureau of Investigation, A.I.R. 2018 S.C. 2161 (India).

[5] State of Madhya Pradesh v. Pradeep Sharma, A.I.R. 2014 S.C. 626 (India).

[6] Prof. Narender Kumar, Constitutional Law Of India, 347 (Allahabad Law Agency, Haryana, 8th ed., Reprinted 2012).

[7] State of M.P v. Ram Kishna Balothia, A.I.R. 1995 S.C. 1198 (India).