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Right to Bail – How Is Bail Determined

Right to Bail – How Is Bail Determined

Although there is a right to bail  to every accused, the term bail is not defined under CrPC. In this article I shall endeavor to analyze various provisions pertaining to Right to Bail and how is bail determined under the provisions of CrPC. To begin with, bail is a kind of security which is given by the accused to the court that he will attend the proceedings against the accusations made upon him and include personal bond and bail bond. Bail is a mechanism used to ensure that the accused is present before the court.

Right to Bail Laws - How Is Bail Determined
Right to Bail – How Is Bail Determined

The two authorities that can grant bail are police and courts.

The basic and fundamental object of bail is to ensure the attendance of accused at the trial before court. The sections from 436 to section 450 deal with the provisions of bail. The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from the police custody. The process of bail is a legitimate process.

Chapter 33 – Provisions As To Bail And Bonds

Section 436 – In what cases bail to be taken

Section 436A – Maximum period for which an under trial prisoner can be detained

Section 437 – When bail may be taken in case of non-bailable offence

Section 437A – Bail to require accused to appear before next appellate Court

Section 438 – Direction for grant of bail to person apprehending arrest

Section 439 – Special powers of High Court or Court of Session regarding bail

Section 440 – Amount of bond and reduction thereof

Section 441 – Bond of accused and sureties

Section 441A – Declaration by sureties

Section 442 – Discharge from custody

Section 443 – Power to order sufficient bail when that first taken is insufficient

Section 444 – Discharge of sureties

Section 445 – Deposit instead of recognizance

Section 446 – Procedure when bond has been forfeited

Section 446A – Cancellation of bond and bail bond

Section 447 – Procedure in case of insolvency or death of surety or when a bond is forfeited

Section 448 – Bond required from minor

Section 449 – Appeal from orders under section 446

Section 450 – Power to direct levy of amount due on certain recognizances

Bail when and when not to be granted:

The code of criminal procedure, 1973 has defined the term bailable offence by stating that 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 the term non-bailable offence states the meaning that any other offence other than bailable offence. The distinction between bailable and non-bailable offences is based on the gravity of the offence, danger of accused absconding, tampering of evidence, previous conduct, health, age and sex of the accused person. Though the schedule for classification of offences as bailable or non bailable is provided in Crpc; however, it is mostly the offences which are punishable with imprisonment for not less than three years that are classified as non-bailable.

The purpose of bail is to ensure the appearance of the accused before the court whenever required but in certain cases, granting bail is not required. The basic rules of grant or denial of bail may simply be summarized as:

  1. There are only two kinds of offences bailable and non bailable offences
  2. In case of bailable offences section 436 CRPC it is the right of the accused to demand and be granted bail.
  3. The certain basic criteria while exercising his judicial discretion for grant or denial of bail in case of non bailable offences has been laid down in section 437 CrPc in the cases related to non-bailable offences. Some of these criteria include the nature of offence, past criminal records and probability of guilt.
  4. Section 438 CRPC deals with anticipatory bail in cases where there is an apprehension to arrest.
  5. There are other factors also which are to be kept in mind by the hon’ble court before granting of bail like the possibility of threatening a witness, possibility of evidence being tampered etc.

Bail by Police

The Police Officer power, to release a person on bail who has been accused of an offence and is in his custody, is categorized under the two heads:

  1. When without any warrant the arrest is made and;
  2. When with the issuance of warrant the arrest is made .

The Power to grant bail by police has been conferred upon them by the virtue of the following sections:

  1. Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of the Code.
  2. The powers of police to grant bail under head are controlled by directions endorsed under Section 71 of the Code. It is under Section 81 of the Code however, which empowers the police officer to grant bail when the person arrested or produced before him has been accused of the commission of a bailable offence even when no direction to such effect has been given in the warrant. In case of non- bailable offence the endorsement on the warrant has to be strictly followed. Endorsement on warrant however should be by name.

Bail when arrest made without warrant

  1. Bail under section 42 Cr. P.C.: Section 42 Cr. P.C. 1973 can be invoked when the offender refuses to give name and address or gives a name and address which the police officer considers to be false. If those particulars are within the knowledge of the police officer, neither the question of arrest nor the question of bail will arise. As soon as name and address has been ascertained the police officer cannot detain him, if he is willing to execute the necessary bonds. The power to arrest and to release on bail can be exercised by any Police Officer not necessarily by an officer-in-charge of the Police station because this section has been enacted to provide for a particular non cognizable offence does not put any restrictions on the power of a Police Officer to enlarge a person on bail after the correct name and residence have been ascertained.
  2. Bail under section 43 Cr. P.C.: The Code of Criminal Procedure provides for the arrest of a private person also though his powers of arrest are very limited. After the arrest has been made the arrested person should be, without unnecessary delay handed over to a police officer, or in his absence, be brought to the nearest police station. The question of bail will depend upon what opinion the police officer forms about the person brought before him. If there is no sufficient ground to believe that the arrested person has committed any offence, he shall at once be released. If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him and then the normal procedure of investigation, determination of the question whether a non-bailable case is made out or not and the desirability of release on bail etc. will arise. If there is reason to believe that he has committed a non-cognizable offence he shall be released as soon as his name and residence have been ascertained as provided under section 42 Criminal Procedure Code. A chowkidar, not being a police officer is not entitled to receive a person arrested under this section. But where a chowkidar is a police officer as under the Chota Nagpur Rural Police Act, (Act I of 1914) he can received a person arrested under section 59, Criminal Procedure Code (old) and detain him in custody.
  3. Bail under sections 56, 57 and 59 Cr. P.C.: Section 56 mandates that a police officer affecting an arrest without warrant must take or send the offender arrested, before a magistrate having jurisdiction in the case of before the officer in charge of a police station. But in section 56, there is an inbuilt provision authorizing police officer to admit the arrested offender to bail, but power of the police officer is subject to the provisions herein contained as to bail. Section 56 of the new Code corresponds to section 60 of the old Code. Section 57 provides that person arrested not to be detained more than twenty four hours. The intention of the legislature is that an accused person should be brought before a Magistrate competent to try or commit with as little delay as possible. Section 57 is pointer to the intendment to uphold liberty and to restrict to the minimum curtailment of liberty. It has been stated in Section 59 of the Code that any person who has been arrested by a police officer shall be discharged only by his own bond, or on bail, or under special order of a magistrate.
  4. Bail under section 169 Cr. P.C.: The section refers to the grant of bail not at the start but only on the making of an investigation under Chapter XII of the Code. Till then bail is not authorized under the provisions of this section. The power to release on bail a person in custody vests in the officer in charge of the police station or the police officer making the investigation. An officer-in-charge of the Police Station or an investigating officer cannot release a person on bail if he has appeared as an accused before the magistrate on the basis of a complaint in respect of the incident which the police is also investigating. If the officer in charge of the police station on the investigating officer takes a bond from the accused for his appearance before the police it is void ab initio. The admission to bail, therefore, is only a provisional arrangement and the magistrate may either discharge the bond in order the re-arrest of the accused. The powers of an officer in charge of the police station on the investigating officer to admit a person to bail are not hampered by the nature of offence of which he is accused.
  5. Bail under section 170 Cr. P.C. : Under this section the authority to grant bail accrues to an officer in charge of the police station, “if the offence is bailable”. It is submitted that a station officer is empowered to grant bail if investigation has disclosed the offence to be bailable and it is immaterial what the initial accusation against him was. Under the imperative provisions of section 170, therefore, an officer in charge of the police station has either to forward the accused in custody or if the offence is bailable or on investigation found to be bailable, to accept bail for his appearance before a magistrate, he cannot entertain an application for the withdrawal of a complaint and, therefore, he cannot be discharged an accused.
  6. Bail under section 437 Cr. P.C.: The power to release on bail a person accused of a non-bailable offence is conferred upon only one class of police officers, namely an officer-in-charge of the Police Station under section 437 sub Section (I). When an officer in charge admits an accused to bail, it is mandatory for him to record the reasons or special reasons in the case diary and preserve the bail bonds until they are discharged either by the appearance of the accused in court or by the order of a competent court. For the purpose of bail in non-bailable offence, the Legislature has classified them under two heads: (1) those which are punishable with death or imprisonment for life; (2) those which are not so punishable. The age or sex or sickness or infirmity of the accused cannot be considered by a police officer for the purpose of granting bail. These matters may be taken in view by a court only. An officer in-charge of the police station may grant bail only when there are no reasonable grounds for believing that the accused has committed a non-bailable offence or when the non-bailable offence complained of is not punishable with death or life imprisonment.

Bail by Police when arrest made in pursuance of warrant

The relevant provisions of Code of Procedure in connection with above heading are confined in section 71 and 81 of Criminal Procedure Code.

  1. Bail under section 71 Cr. P.C.: The relevant provisions of Code of Procedure in connection with above heading are confined in section 71 and 81 of Criminal Procedure Code. It is a matter entirely at the discretion of the court issuing a warrant under this section to give a direction for the release of the arrested person on bail or not. Even in bailable offence, a court may not give such direction. In the case of Lachhmi Narain Vs. Emperor, the above has been stated.  When a person who is to be arrested is not arrested until the date on which he has to attend the court, the direction regarding the taking of bail lapses.
  2. Bail under section 80 & 81 Cr. P.C. : When a warrant of arrest is executed outside the district in which it was issued any police officer who is not a District Superintendent of police or the Commissioner of Police may release an arrested person according to the directions contained in the endorsement. But a District Superintendent of Police, the Commissioner of Police in presidency town with in the local limits of whose jurisdiction the arrest was made shall release on bail the arrested person, if the offence is bailable and such person is ready and willing to give bail to their satisfaction.

A police officer cannot release a person on bail simply because the arrested person is accused of a bailable offence. He has to comply strictly with the contents of the endorsement if any.

Bail to Lunatics :

Section 330, Cr. P.C. Bail cannot be claimed as a matter of right for persons of unsound mind. Courts have been vested with great powers and wide discretion in the matter of grant or refusal of bail. A Magistrate may release a person of unsound mind on bail even though he is charged of an offence of the most heinous type and may refuse bail in bailable case if he is of the opinion that bail should not be allowed.

An accused of unsound mind may be released on security, irrespective of the offence with which he is charged not only on the finding by the court that the accused is of unsound mind, but also prior to such finding, during the pendency of the inquiry into his state of mind [section 328 (2)]

Bail for Contempt in presence of Court under section 346 of Cr. P.C.

When an offence, as is described in section 175, Section 178, 179, 180 or 228 of I.P.C. is committed in the view or presence of a Criminal Court and that court, instead of proceeding under section 345, Cr.P.C., considers that the person accused of any of the offences referred to above should be imprisoned otherwise than in default of fine, or that a fine exceeding two hundred rupees should be imposed upon him, then the court after it has recorded the facts constituting the offence and the statement of the accused, may forward the case to a Magistrate having jurisdiction to try the same, and for the appearance of such accused person may require security to be given before such Magistrate or shall forward such person in custody to such Magistrate in case sufficient security is not given under this section as under the provisions of section 340, the person complained against has not to apply for bail to the court. It is the discretion of the court forwarding the complaint either to ensure the attendance of the accused by demanding a security for his appearance before the transferee Magistrate or it may just inform the accused of the date on which he has to appear before that court. He cannot be taken in custody merely because he has not applied for bail. He can be taken in custody if security is demanded from him and he does not give sufficient security.

Bail to First offender under section 360, Cr. P.C.

Sub-section (1) of section 360, Criminal Procedure Code, deals with the power of a court or a Magistrate of the second class specially empowered by the State Government in this behalf, to release a convicted offender on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Magistrate may direct, and in the mean time to keep the peace and be of good behaviour. The Magistrate thus has discretion either to punish the offender with imprisonment or release him on probation of good conduct.

Basic Rule

India is a democratic country and the basic concept of democracy is that every individual must have personal liberty and freedom. It is the basic right of an individual which is protected by the state. Thus the concept of bail and personal liberty goes hand in hand and therefore every individual including the accused person has the right to seek bail in order to get himself released from custody until and unless proven guilty by a court of law. As enshrined under Article 21 of the Indian Constitution that the life and personal liberty of a person can’t be deprived except by the procedures laid down by the law.


The basic goal behind arresting and detaining a person behind the jail is that when the accused is required by the court during the trial he must appear in court for the trial. The process of bail is a complex mechanism, it is considered to be very delicate and conflicting at the same time. The reason it is very delicate is that an accused seeks for bail when the trial is pending in the court and it can’t be said that the accused is innocent or culprit. Sometimes when the bail is not granted to the accused person it may curtail the liberty of the innocent accused or while granting bail may result in giving extra-liberty and freedom to the actual culprit.

It is a comprehensive statement used in general that an accused person may escape his crimes but an innocent shall not pay the price of some other person’s deed. Based on this ideology the code of criminal procedure has bifurcated the offences into two categories.

Cases in which bail to be taken (section 436 of CR.PC)

In this case, if a person who is not guilty of any non-bailable offence and gets arrested without a warrant by the police authority and is prepared to give bail, then it is the duty of the police authorities to release him. The person arrested may be released on the bond without submitting any sureties.

Appealability of the order (section 439 of the code)

Section 439 of the code states that any orders passed under section 436 of the code shall be appealable.

  1.   The order made by the magistrate to the session’s judge is appealable.
  2.   In case when the court of sessions passes an order to the court where an appeal lies from an order made by such court.

Investigation incomplete (section 167 of the code)

Under section 57 of the code states that a person arrested or taken into custody has to be released after 24 hours. Within those 24 hours, he has to be presented before the magistrate with a notice. The period of 24 hours can be extended if the investigation regarding the offence or crime committed has not been completed. Section 167 states that in order to extend the period of 24 hours for the purpose of investigation prior order has to be obtained from the magistrate. If the investigation is not completed the person arrested or detained shall be released. The period of detention shall not exceed 90 days (in case where the offence is punishable with the death penalty or life imprisonment) and 60 days (in case where the offence is punishable for a term less than ten years).

The maximum period for which an under-trial prisoner can be detained (section 436-A of the code)

Under section 436 A of the code states that the detention period for an undertrial prisoner other than the one who is accused of the criminal offences punishable with death or life imprisonment shall be released from detention if the person has been detained for one half of the maximum sentence provided for the offence committed by him.

When may bail be taken in case of non-bailable offences (section 437 of the code)?

It depends upon the discretion of the court or the police officials that they may release the person arrested for non-bailable offences until and unless there exists any reasonable grounds or apprehension that person arrested has committed any crime and is not guilty of any criminal liabilities which is punishable with life imprisonment or the death penalty.

Bail to require accused to appear before the next appellate court (section 437 A of the code)

Under section 437A of the code, it has been stated that in order to appear in the higher court as and when the higher court issues the notice against the judgment of the court it becomes mandatory for the trial court or the appellate court which requires the accused to execute the bail bond with sureties.

What do you mean by the Anticipatory Bail?

Under section 438 of the code, it has been stated that the term anticipatory bail can be understood through the expression anticipatory. Anticipatory bail is the bail granted by the court in anticipation of the arrest. When this bail is granted to a person it ensures that in case if the person is arrested in the near future then such person shall be released on this anticipatory bail. No questions can be raised on the release unless the person executing this bail is arrested and therefore it totally depends upon the arrest that the order granting such bail becomes operative.

The following provision of section 438 of the code was recommended by the law commission. On its 48th report, they expressed their observations regarding the provision of anticipatory bail and stated that such provision is a useful addition to the code but it should be used in extraordinary or exceptional cases only.

Section 438 of the code runs as follows:

When any person having the reasonable apprehension that he may be accused of committing the offence of non-bailable nature then such person can apply for anticipatory bail in the high court or the sessions court. The role of the court having competent jurisdiction shall give him direction under section 438 of the code that during the time when he gets arrested he shall be released on bail after taking into consideration the following conditions shall accept or reject the application filed for anticipatory bail by the person getting arrested.

Following are the factors:

  • The accusation made shall be grave and serious
  • Likelihood of the applicant to flee or abscond from justice
  • When the accusation is made with the intention of humiliating or injuring the person by making him arrested through that accusation.

Conditions under section 438 of the code involve the following things.

  • The applicant filing for the anticipatory bail shall have the reasonable apprehension of getting arrested
  • The arrest of such person shall be in respect of the accusation of him committing non-bailable offence or cognizable offence and the courts having competent jurisdiction shall direct that in the event of the arrest the person shall be released.

Following conditions are imposed on the person seeking the anticipatory bail by the courts having competent jurisdiction

  • It is the duty of the person to appear or make himself available whenever required by the police officials for the investigation.
  • He must not induce or threat for dissuading him from disclosing facts of the case.
  • The applicant shall not go outside the territory of India without taking the prior permission of the court.
  • Or if the following conditions stated in point one and two are fulfilled and such person is ready to give bail, he should be released from custody subject.

Distinction between Bail and the anticipatory bail

Under section 437 of the code, it has been stated that a regular bail is available and granted to a person after the arrest when he is in the judicial or police custody,  however in the case of an anticipatory bail is available to a person before the arrest or if the person has reasonable apprehension of arrest.

Post-Conviction and Pre-Appeal Bail under section 389 Cr. P.C. :

The section contemplates post-conviction and pre-appeal period. Pending an appeal against conviction appellate Court may release the convict on bail and High Court can exercise this power when appeal lies to Sessions Court. So far as the court convicting the accused is concerned, the court is bond to admit the accused to bail pending order passed by appellate court or High Court when (a) the accused was already on bail and has been sentenced to imprisonment for a term not exceeding three years; or (b) when the offence was a bailable one. Even on fulfilment of the condition court on convicting the accused may refuse bail if there exists a special reason. Under this section an intention to present an appeal on the part of the convicted person is sufficient reason to justify the release of a convicted person on bail. It may further be noted that an order of bail under this section is for a limited period only and is applicable only to “convicted” persons and not to those who are bound over.

Bail while making reference under section 395 Cr. P.C. :

When a Magistrate makes a reference under section 395, CrPC, to the High Court for its opinion on the validity or otherwise of any act, Ordinance or Regulation or under any other section of this act, he may then in such case, pending the High Court’s decision, either commit the accused to jail or release him on bail to appear when called upon. The Magistrate will exercise his discretion in favour of the accused or against him according to the seriousness of the charge and severity of punishment provided in that act, Ordinance or Regulation.

Bail During Revision Under Section 397 Cr. P.C. :

The Sessions Court and the High Court in exercise of revisional power can call for records of inferior courts for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. When such revisional Court calls for the record of an inferior Court, he may direct that the execution of the sentence or order be suspended and, in case the accused is in confinement, then he may be released either on bail or on his own bond pending the examination of the record.

Bail under Section 437 Cr. P. C. Section 437:

It deals with bail in bailable offences. Grant of bail is a rule whereas refusal in this context is an exception. A person accused of bailable offence has the right to be released on bail. Bail in cases of bailable offences is compulsory bail. It is a discretionary option to grant a bail to a person accused of bailable offence. When a person who is suspected of committing a bailable offence is produced before a Magistrate and he is prepared to give bail, Magistrate has to release him on bail without having any other option.

Bail for non-bailable Offence: Under Section 437 Cr. P. C.:

The provisions of section 437 empower two authorities to consider the question of bail, namely-

  1. a “court” which includes a High Court and a Court of Session, and
  2. an officer-in-charge of the police station who has arrested or detained without warrant a person accused or suspected of the commission of a non-bailable offence. Although this section deals with the power or discretion of a court as well as a police officer in charge of police station to grant bail in non- bailable offences it has also laid down certain restrictions on the power of a police officer to grant bail and certain rights of an accused person to obtain bail when he is being tried by a Magistrate.

Section 437, Criminal Procedure Code, deals with the powers of the trial court and of the Magistrate to whom the offender is produced by the police or the accused surrenders or appears, to grant or refuse bail to person accused of, or suspected of the commission of any non-bailable offence.

Criteria for Judicial Discretion to Grant or Refuse Bail

This judicial discretion has to answer one of the most important fundamental rights guaranteed under Article 21 of the Constitution, namely, personal liberty. Grant of bail may he gifting personal liberty to a person who has been arrested or who is anticipating an imminent arrest. On the other hand, refusal of bail implies sending that person to jail, or to police custody, as the case may be, and thereby depriving that person of his personal liberty.

In fact, the question of “bail or jail?” has a bearing not only on the individual concerned but also on the society in general, for, an innocent person sent to jail may not augur well for a just society whereas a dangerous and hardened criminal released on bail can do more harm to the society by way of destroying the evidence, threatening the witnesses, evading the judicial process or may be by committing more offences. The importance of this judicial discretion cannot therefore be understated.

Frequently Asked Questions:

  1. When can a bail be denied?
    1. As per section 436 (2), if a person has violated the conditions of the bail bond earlier, the court may refuse to release him on bail, on a subsequent occasion in the same case. He can also be asked to pay penalty for not appearing before the court in the proceedings against him
    2. It is clear that the provisions related to bail in case of non-bailable offences gives a discretionary power to the police and to the court. However the power is not without any restraint. Section 437 disallows to be given bail under following conditions:
      • If it appears there is a reasonable ground for believing that he has committed an offence punishable with life imprisonment or death.
      • If such offence is cognizable and the person has been previously been convicted of an offence with death or life imprisonment
  2. Is cancellation of bail possible?
    • Although there was no provision for cancellation of bail but in Talib’s case (AIR 1958) it has been held by the hon’able court that the absence of such provision not as a lacuna but as a recognized power of high court for cancellation of bail. According to section 437 (5), any court which has released a person on bail may direct a person to be arrested or put into custody. Section 439 CRPC also grants power to the high court and the courts of session to cancel the bail and put the person into custody.
  3. Can a bail be refused in cases of bailable offences?
    • Section 436 (2) of chapter 38 of Crpc has empowered the court for denial of bail in   cases of bailable offences if the accused fails to comply with the conditions of bail bonds.



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