Everything About Bail


This article was written by Asmita Rakhecha a student of University of Calcutta.

What is Bail

Bail is a mechanism by which, an accused assures his presence in court for his pending proceedings. Thus Bail is a written undertaking made to the court by the accused. The basic idea behind Bail is to ensure that justice is served to the accused. This is because according to the law prevailing in India, an accused is presumed innocent until proven to be guilty.

An offence can be classified into two broad categories, namely, Bailable offence and Non-Bailable offence. In general terms, in case of a Bailable offence, it is the right of the accused to be granted a bail and thus getting a bail for committing such offences is relatively easier. However, in case of non-bailable offences bail is not a way of right of the accused. This is because Non-Bailable offences are concerned with more serious offences for which bail cannot be obtained easily. The Criminal Procedure Code defines Bailable and Non-Bailable offences under Section 2(a) as follows,

“bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence

Soma Bailable offences include bribing an election commissioner, obstructing a public servant from discharging his duties, providing false evidence. On the hand some Non-Bailable offences include murder, threating someone to provide false evidence, failure to appear the court on a hearing when released on bail and as per the bail bond.

Who Applies for Bail

A person who has been accused of committing an offence or who has pending criminal proceedings against him can apply to be released on bail. While applying for a bail, the accused agrees to fulfil certain conditions of the agreement contained within the bail. These include the following:

  1. a) Attend all proceedings pertaining to his case, until the final hearing.
  2. b) Comply with all conditions of the agreement and conduct himself in a manner which is conducive to the agreement.
  3. c) Hold liability to pay a penalty in case the accused fails to comply with the conditions as laid out in the agreement, without proper excuse.

Who Can Give Bail

The police or the court has the power to give bail. The police has the power to grant bail only in cases of Bailable offences and not Non-bailable offences. However the latter have the power to grant bail in both cases. While giving bail the accused may be asked to provide a surety. However in some cases the accused may be granted bail by signing his own bond. He may or may not be asked to provide a security for the same.

In Moti Ram vs. State of Madhya Pradesh[1] the Supreme Court held that, in order to prevent the whole process of getting a bail becoming  expensive and impossibly inconvenient, an accused must be allowed to sign his bond without the need of sureties. This is because procuring sureties can prove to be very expensive and the liberty of a person to move freely must not come at such a high price.

The main aim of the judicial system is to give bail before jail. This is because the law believes that each person must be given a fair chance to defend himself, and in order to do this, the accused must be released from captivity and be given a fair chance to defend himself to the best of his ability. Thus giving bail is the rule and denying bail is an exception.

Cancellation of Bail

Section 439 of the Code of Criminal Procedure provides for cancellation of bail and to whom such power is given. Section 439 awards the High Court and Court of Session the power to cancel a bail if it deems so to be fit. This power of cancellation of bail comes with no riders. Section 439(2) reads as follows,

“A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

This power awarded to the High Court and Court of Session is discretionary. It has also been held that the order granting bail is an interlocutory order. Hence such an order cannot be challenged in court. Thus, there is no method of refuting an order passed by a judge, refusing to grant bail. However, remedy for such a situation can be obtained by filing for a Special Leave Petition with the Supreme Court or High Court.

When Can Bail be Denied

There are certain cases where the court may refuse to grant bail to an accused. These cases could fall under any of the following categories

1) Breach of condition of Bail Bond: In case the accused failed to abide by the conditions of the bail bond in a previous occasion, the court may refuse to grant bail to such a person in subsequent occasions in the same case. Section 436(2) provides for such cases. It states that ‘where a person has failed to comply with the conditions of the bail- bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.

2) Section 437: This section provides for certain offences which, if committed by the accused, renders him ineligible to get bail. These include committing any offence, the punishment for which is a death sentence or life imprisonment. Or if the accused had been convicted of committing a cognizable offence the punishment for which is a death sentence or life imprisonment or imprisonment above seven years. Or if the accused had been convicted twice or more, in previous occasions for committing a cognizable and non-bailable offence.

3) Dowry Death: Any person accused of causing Dowry Death will not be granted a bail.

Anticipatory Bail

Often people find themselves arrested due to political propaganda and manoeuvre. Most of these people have arrest warrants issued against them in order to keep them away from the political scene. Hence to avoid such a situation, a person may apply to the High Court or the Court of Session for a bail, apprehending that he might be accused of committing an offence. Section 438 of the Criminal Procedure Code provides for anticipatory bail as follows,

Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail.’


[1] Moti Ram v. State of Madhya Pradesh, 1978 AIR 1594, 1979 SCR (1) 335

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