Law of Bail in India

Author : Chitranshi Verma (Lloyd Law College, Greater Noida)


Bail is a structure used to secure the appearance of an accused person of an awaiting trial before the respective court. The term bail is not defined under CRPC, the word ‘bail’ means security deposited to appear before the court for the temporary release from imprisonment.

Originally the word “bail” has been derived from the French old verb, meaning “to deliver” or “to give“. But in our democratic country, the basic concept of bail and liberty goes hand in hand and therefore every individual including the prisoner has the right to seek bail to get himself a release from custody. Under Article 21 of the Indian Constitution, the provisions have been given that the life and personal liberty of a person can’t be deprived of excluding the procedures laid down by the law.


The main purpose of bail is to secure an accused’s presence in court, as and whenever required. A bail is an important written agreement between the accused and the court which implies that the accused agrees to that he/she would appear in court and will cooperate with the police as and when called upon by the court. When the bail is granted, the sum amount of bond, the number of sureties or conditions are imposed on the accused to guarantee that the accused attends the next hearing.


The concept of bail was discovered back to 399 BC when the Plato tried to create a Bond for the release of Socrates. With time the modern bail system has developed from a series of laws originating in the Middle East in England. In the ancient period and that too in uncivilized society, one can hardly think of the system of bail, but later in civilized society, it has become the absolute rule. As if in earlier times the Criminal justice was quick and crime rates were low that the trails used to get concluded in 2-3 days. So the provisions of Bail was not so known to the society. With time, crime rates increased and the criminal trials get delayed day by day. 

During the Mughal rule, the Indian legal system used to have criminal courts which had an institution of bail releasing an arrested person on his submission of some valuable thing as a surety. In Hindi, bail is known as zamanat, in which the zamin (surety) becomes answerable for the accused based on a written deed deposited by him with the trying court.

Later, the British institution of bail was transposed into Indian legal system by passing the Code of Criminal Procedure in 1861, its latest reflection is the improvised version of the provisions related to bail in the Code of Criminal Procedure, 1973.

Classification of Offences

As bail is not defined in CRPC, but the terms bailable and non-bailable offences are given Section 2 (a) is classified in CRPC.

  • Bailable offence – It is a type of offence in which the accused is granted bail, in these offences generally the punishment by the court is less than 3yrs of imprisonment. 
  • Non-bailable offence – In this offence, the accused is not granted bail easily, since the offences are grievous as compared to bailable offence. And the punishment in such cases is more than 3yrs.

Types of Bail

Generally, there are following types of bail:

1. Regular bail (section 437)

Regular bail is applied for by a person after his/her arrest since the person has already been arrested and in police custody.

2. Anticipatory bail (section 438)

Anticipatory bail is granted after the registration of FIR but before a person is arrested by police. If a person in fear of getting arrested, then anticipatory bail is applied by the person. In anticipatory bail, a person is out, not arrested but has an apprehension of getting arrested.

3. Interim bail

Interim bail is like temporary bail which may be granted till the time application for anticipatory bail and regular bail is pending before the court.

4. Transit bail

In transit bail is applied when the crime took place in one state and FIR lodged in a particular station, the accused is residing in a different state, if he/she might have a fear of arrest then to avoid that one applies for transit anticipatory bail to seek protection till you reach the particular where the crime occurred. Transit bail is rare, given in one in billions.

The Bail process

When someone is arrested, then firstly he/she is taken to a police station to be booked. Then the police gather his personal information such as date of birth, address and do little inquiry about the background of the arrested person and check if any of his past criminal records exist.

Bail Application is usually filed first before the Judicial Magistrate, depending upon the gravity of offence and nature of punishment. Then if the bail is rejected by a Judicial Magistrate one may file before the sessions court, then to the High Court and then to the Supreme Court.

  • Bail Application 

When the person is convicted of a crime, he has the right to apply for bail. Applying for bail depends on the point under which types of offences that case is into, whether bailable and non-bailable. In the case of bailable offence, the accused has to apply by filling the Form-45 which is provided in the 2nd schedule. This should be filed in the respective court where the case proceedings are to be heard. The court has to approve the bail

In case of non-bailable offences, the accused has to fill the same form in the court where his case is to be presented, the change in this sort of offence is that the court has the discretion to grant bail.

  • Bail on Appeal

When the accused is under conviction and applies for bail in lower courts and the bail gets rejected from the lower courts then he/she may apply to appeal for bail in the High Court if it gets rejected from there too then may move to Supreme Court for bail.

  • Bail Hearing

The bail hearing is the process, where the judge hears all the sufficient reasons to grant bail and then declare his decision based on whether he is convinced enough and grant bail to the accused or not. The council has to convince the judge by providing all the evidence and facts on which bail can be granted. Once the judge grants bail then he imposes some conditions on accused constraints in travel, necessary conditions in employment, and periodic meetings with an officer. 

Kinds of bail bonds

  • Cash bond – In this kind of bail bond, the accused pay the full amount of bail in cash or through cheque/credit card. The amount for the bail is decided by the Judge who grants the bail. 
  • Surety bond – It is generally known as bail bond and when accused is unable to pay for his/her bail. Then the relatives of the accused contact the bail agent, who is also known as a bail bondsman. The bail bondsman is supported by an insurance company and he is made liable to pay that amount which the accused fails to do.

In return, the bail agent charges his client 5 to 10% instalment and collects some sort of collateral as surety.

  • Personal bond – A personal bond stating that accused will appear to future court dates, and no money has to be deposited to the court for the bail, but the promise is done by accused that he will cooperate with police and if one fails to comply with the agreement then he will be made to pay a certain amount of money.
  • Property bond ‐ In this bail bond the accused instead of giving cash as bail amount, they can switch to give legal authority to court over his/her property. If the accused does not appear in court at the time when court calls, then the court can confiscate his property.

Cancellation of Bail [Section 439 (2)]

The court has the power to grant the bail, can also withdraw the allowance of bail either on its own (suo moto) or on the Application from police/complainant or any other aggrieved person. The courts cancel the bail only when they find on record very strong evidence against the accused which is not suitable enough to set him free. 

Cancellation of bail is tougher than Rejection of bail. 

The ground of cancellation of bail and rejection of bail is way different from each other, hence the approach of the court is different in both the procedures.


It can be concluded that the procedure of bail is the legal process in India. The concept of bail has been evolved by time and resulted in the best interest of an individual including prisoners who are the citizens of India. Bail is like surety given by the accused person to court for the non-permanent release from the imprisonment. People have made a clear choice between Bail or jail. With time people have understood the legal procedures of the bail system, and exercise their legal rights most appropriately.

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