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Criminal Law

Concept of Bail



  • The concept of Bail is provided by Chapter XXXIII (Thirty-Three) of the Code of Criminal Procedure, 1973 (CrPC) titled ‘Provisions as to Bail and Bonds’. It consists of Sections 436-450.
    • Bail means short-term release of an accused person awaiting trial.
  • Bail is the judicial release of an accused charged with a certain offence by imposing some restrictions on him and compelling him to remain within the jurisdiction of court.

Legal Position of Bail

The term ‘Bail’ has not been defined under CrPC. Only the term ‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a) of the Code.

Bailable Offences

  • According to Section 2(a) of CrPC bailable offence means an offence that is classified as bailable in the First Schedule of the Code, or which is classified as bailable under any other law.
  • Under Section 436 of CrPC a person accused of a bailable offence at any time while under arrest without a warrant and at any stage of the proceedings has the right to be released on bail.
  • An accused can claim bail as a matter of right if he is accused of committing a bailable offence.
  • The Police Officer or any other authority has no right to reject the bail if the accused is ready to the furnish bail.

Non-Bailable Offences

  • Any offence not mentioned as bailable under the First Schedule of CrPC or any other law is considered as non-bailable offence.
  • A person accused of a non-bailable offence cannot claim bail as a right. Section 437 of CrPC provides for when bail may be taken in case of non-bailable offence.
  • A person accused of non-bailable offence can be granted bail provided the accused does not fall under the following grounds:
    • There are reasonable grounds to believe that he committed an offence punishable with death penalty or life imprisonment.
    • That the accused has committed a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment of seven years or more.
    • That the accused had been previously convicted on two or more occasions of commission of a cognizable offence punishable with imprisonment for three years or more but not less than seven years.
    • There are exceptional cases in which law gives special consideration in favour of persons i.e., where the accused is a minor, a woman, a sick person etc. by virtue of Section 437(1) of CrPC.

Who can grant Bail?

  • In case of a Bailable offence - Officer in charge of Police Station/ Court as per Section 436(1) of CrPC.
  • In case of Non Bailable offence – Court (of any level) as per Section 437(1) of CrPC.
  • Anticipatory Bail can be granted by Session Court or High Court according to Section 438(1) of CrPC.

Different types of Bail

  • Regular Bail: The court orders the release of a person who is under arrest, from Police custody after paying the amount as bail money. An accused can apply for regular bail under Section 437 and 439 of Crpc.
  • Interim Bail: This is a direct order by the court to provide temporary and short-term bail to the accused until his regular or anticipatory bail application is pending before the court.
  • Anticipatory Bail: A person under apprehension of arrest for a non-bailable offence may apply for anticipatory bail to the High Court or the Court of Session under Section 438 of CrPC.

Conditions while Granting Bail

  • According to Section 437(3), while granting bail to 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,1860 (IPC), the court shall impose following conditions:
    • Such person shall attend in accordance with the conditions of the bond executed under this Chapter.
    • 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.
    • 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.

Special Powers of High Court or Court of Session Regarding Bail

Section 439 of CrPC accords certain special powers to both High Court and Sessions Court with respect to Bail. They are as follows:

  • Court may direct that any person accused of an offence and in custody be released on bail and may impose any condition which it considers necessary.
  • Court may direct that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.

Landmark Case Laws

  • Moti Ram & Ors vs State Of M.P (1978):
    • The right to seek release on bail under Section 436(1) cannot be undermined indirectly by imposing an unreasonably high bond amount or bail bond requirement on the individual seeking release.
  • K. S. Layak v. State of A.P (1981):
    • It was held by the Andhra Pradesh HC that while granting bail on conditions, any condition which is in derogation of an accused’s fundamental rights cannot be imposed.
  • Gurcharan Singh & Ors v. State (Delhi Administration) (1978): The Supreme Court (SC) opined that:
    • There are no provisions in the CrPC that describes time duration for disposal of grant of pre-arrest anticipatory bail.
    • The concerned court has the discretion to impose conditions for grant of anticipatory bail including a limited period of protection etc., subject to considering any special circumstances required.
  • Gurbaksh Singh Sibbia v. The state of Punjab (1980):
    • It was held by 5 judge constitution bench of the SC that Section 438(1) of CrPC is to be interpreted in the light of Article 21 of the Constitution of India.

Cancellation of Bail

  • The settled doctrine by the Supreme Court of India is that ‘Bail is the rule and jail is an exception’ but if cogent grounds are established, the courts are enshrined with powers to cancel the bail of a person.
  • The Lower Courts, including those of Magistrates, have the authority to cancel bail under Section 437(5) of CrPC, whereas the High Court and Court of Session have the authority under Section 439(2) of the Code.
  • The court needs to consider following circumstances before cancellation of bail:
    • The nature of the accusation (gravity and severity of offence).
    • The severity of punishment.
    • Taking into consideration the position or status of the accused, i.e., whether the accused can exercise influence on the victim and the witnesses or not.
    • Capacity of the accused to obstruct the due course of justice.
    • Possibility of repetition of offence when on bail.
    • The prima facie satisfaction of the court in support of the charge.
    • The different and distinct facts of each case and nature of substantive and corroborative evidence.
    • Likelihood of accused to approach the victims/witnesses.
    • Likelihood of accused absconding from proceedings.
    • Possibility of accused to tamper with evidence.


The right to life and personal liberty is a fundamental right granted by the Constitution of India. The Indian judicial and legal systems have time and again given priority to grant of bail when warranted. As nothing can be understood in absolute sense, in terms of bail as well there is need to implement checks and balances so that the provisions of law are not misused.