A PROJECT

ON
provision of bail under Indian law

Subject: - CRIMINAL LAW II

Submitted To:- Ft. PETER LADIS
Submitted By:- AJITABH
Roll No:-906

INTRODUCTION
Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by
the deposit of security to ensure his submission at the required time to legal authority. The
monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set
by the court having jurisdiction over the prisoner. The security may be cash, the papers giving
title to property, or the bond of private persons of means or of a professional bondsman or
bonding company. Failure of the person released on bail to surrender himself at the appointed
time results in forfeiture of the security. The law lexicon defines bail as the security for the
appearance of the accused person on which he is released pending trial or investigation. Courts
have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is
usually refused when the accused is charged with homicide. What is contemplated by bail is to
"procure the release of a person from legal custody, by undertaking that he/she shall appear at the
time and place designated and submit him/herself to the jurisdiction and judgment of the court.
RESEARCH METHODOLOGY
The project is basically based on the doctrinal method of research as no field work is done on
this topic. The whole project is made with the use of secondary source.
AIMS AND OBJECTIVES
The aim of the project is to present a detailed study of PROVISION REGARDING BAIL
UNDER Cr.P.C through decisions and suggestion.
SOURCE OF DATA
The following secondary sources of data have been used in the project:
1.

Books

2.

Website

3.

Magazine

4.

Journals

RESEARCH QUESTION
1. What are the provisions of bail under Indian law?
2. Is there any abusement of bail in india?

CHAPTERISATION
1.
2.
3.
4.
5.
6.

INTRODUCTION
PROVISIONS OF BAIL UNDER Cr.P,C
COMPARISION BETWEEN INDIAN AND ENGLISH LAW
POWER OF COURTS REGARDING BAIL
MISUSE OF BAIL
CONCLUSION AND SUGGESTION
BIBLIOGRAPHY

INTRODUCTION

Objectively analyzed the criminal jurisprudence adopted by India is a mere reflection of the
Victorian legacy left behind by the Britishers.1 The passage of time has only seen a few
amendments once in a while to satisfy pressure groups and vote banks. Probably no thought has
been given whether these legislations, which have existed for almost seven decades, have taken
into account the plight and the socio-economic conditions of 70% of the population of this
country which lives in utter poverty. India being a poverty stricken developing country needed
anything but a blind copy of the legislations prevalent indeveloped western countries. The
concept of bail, which is an integral part of the criminal jurisprudence, also suffers from the
above stated drawbacks. Bail is broadly used to refer to the release of a person charged with an
offence, on his providing a security that will ensure his presence before the court or any other
authority whenever required. Meaning of Bail
Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by
the deposit of security to ensure his submission at the required time to legal authority. The
monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set
by the court having jurisdiction over the prisoner. The security may be cash, the papers giving
title to property, or the bond of private persons of means or of a professional bondsman or
bonding company. Failure of the person released on bail to surrender himself at the appointed
time results in forfeiture of the security. The law lexicon defines bail as the security for the
appearance of the accused person on which he is released pending trial or investigation. Courts
have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is
usually refused when the accused is charged with homicide. What is contemplated by bail is to
"procure the release of a person from legal custody, by undertaking that he/she shall appear at the
time and place designated and submit him/herself to the jurisdiction and judgment of the court."
A reading of the above definition make it evident that money need not be a concomitant of the
bail system. As already discussed above, the majority of the population in rural India, lives in the
thrall of poverty and destitution, and don't even have the money to earn one square meal a day.
Yet, they are still expected to serve a surety even though they have been charged with a bailable
offence where the accused is entitled to secure bail as a matter of right. As a result, a poor man
languishes behind bars, subject to the atrocities of the jail authorities rubbing shoulders with
1

hardened criminals and effectively being treated as a convict. The purpose of arrest and detention
of a person is primarily to make sure that the person appears before the court at the time of trial
and if he is found guilty and is sentenced to imprisonment, he must be made available to serve
his sentence. However, if it is reasonably evident that the person charged with an offence can be
made available for the above mentioned purposes without keeping him imprisoned, then it is
unfair to keep him in custody until his guilt is proven. It is a violation of a person's fundamental
right to restrict the person's liberty without any just cause.
Bail is one such mechanism which is used to ensure the presence of an accused whenever
required by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in
which a person makes a written undertaking to the court. A person who is in custody, because he
or she has been charged with an offence or is involved in pending criminal proceedings, may
apply to be released on Bail. Normally, in signing a bail agreement a person undertakes that he
will be present every time the matter is in court until the proceedings are finished, will comply
with any conditions set out in the agreement as to conduct while on Bail, and will forfeit a
specified sum of money if the person fails, without proper excuse, to comply with any term or
condition of the agreement. Two authorities that may grant bail are the police and the courts. A
person may be required to provide a security as well. But it is not necessary. A person may also
be let off on his own bond. In the case of Moti Ram vs State of MP, AIR 1978, SC held that a
Bail covers both release on one's own bond with or without surety.

PROVISION UNDER Cr.P.C

An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable
offence is an offence of relatively less severity and for which the accused has a right to be
released on bail. While a non-bailable offence is a serious offence and for it, the accused cannot
demand to be released on bail as a right. More specifically, Section 2(a) defines Bailable Offence
as well as Non-Bailable Offence as follows Section 2 (a) - 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 "nonbailable offence" means any other offence.
Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply
makes those offences as bailable which are listed as so in the First Schedule of Cr P C. These
offences include offences such as obstructing a public servant from discharging his duties,
bribing an election official, and providing false evidence. Non-bailable offences include offences
such as murder, threatening a person to give false evidence, and failure by a person released on
bail or bond to appeal before court. However, a quick look at the list of bailable and non-bailable
offences shows that bailable offences are of relatively less severity.
As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused before the
court whenever required. However, granting bail is not advisable in all cases. For example, a
murder, if let loose, may try to intimidate the witnesses, or he may even abscond altogether. This
is very bad for the society in general and reflects bad on the justice system. Thus, various rules
and procedures have been formulated to make sure that only the deserving are released on bail.
They try to achieve a balance between the rights of the accused and the protection of the society
and effectiveness of the justice system.
The working of the bail system in India was highlighted in the case of Hussainara Khaton vs
Home Secretory, 1980. It came to the courts attention for the first time that thousands of people
were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6
months to an year. This was because they were unable to pay bond money for bail and the courts
were too backlogged to hear their cases. In this respect, J Bhagwati observed that the courts must

abandon the antiquated concept under which pretrial release is ordered only against bail with
sureties.
Thus, in general, the intention of the justice system is to give bail and not jail before the accused
is convicted. It is said that since the accused is presumed innocence, he must be released so that
he can fight for his defense. Thus, releasing a person on bail is a rule, while denying bail is an
exception.
Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence or
non-bailable offence
Bail for Bailable offences When any person accused for a bailable offence is arrested or detained without warrant by an
officer in charge of a police station, or appears or is brought before a Court, and is prepared at
any time while in the custody of such officer or at any stage of the proceeding before such Court
to give bail, such person shall be released on bail.
In case of a bailable offence bail is a matter of right. If such officer or Court, thinks it fit such
person maybe released on a personal bond without sureties. In case of bailable offence, one has
to only file the bail bonds and no application is required. A person accused of a bailable offence
can demand to be released on bail as a matter of right. This is provided for by Section 436.
Section 436 - When any person other than a person accused of a non-bailable offence is arrested
or detained without warrant by an officer in charge of a police station, or appears or is brought
before a court, and is prepared at, any, time while-in the custody of such officer or at any stage of
the proceeding before such court to give bail, such person shall be released on bail.
Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such person,
discharge him on his executing a bond without sureties for his appearance.
Section 50(2) imposes an obligation on the police officer to notify the detained person about his
right to get bail if he is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1)
specifically provides that the amount of bail cannot be unreasonably high.

An amendment to Section 436 mandates that an indigent person, who is unable to provide any
bail amount, must be released. If a person is unable to provide bail amount for a week, then he
can be considered indigent.
Section 436 A allows a person to be released on his own surety if he has already spent half the
maximum sentence provided for the alleged crime in jail. However, this does not apply if death
is one of the punishments specified for the offence.
Non-bailable offences
In case a person is accused of a non-bailable offence it is a matter of discretion of the court to
grant or refuse bail and application has to be made in court to grant bail.
When a person accused of, or suspected of, the commission of any non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station or appears or is
brought before a Court other than the High Court or Court of Session, he may be released on
bail, but Provided that the Court may direct that a person referred to in clause (i) or clause (ii)
as above, be released on bail if such person is under the age of sixteen years or is a woman or is
sick or infirm: Provided further that the Court may also direct that a person referred to in clause
(ii) be released on bail if it is satisfied that it is just and proper so to do for any other special
reason: Provided also that the mere fact that an accused may be required for being identified by
witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is
otherwise entitled to be released on bail and gives an undertaking that he shall comply with such
directions as may be given by the Court.
such person shall not be released if there appear reasonable grounds for believing that he has
been guilty of an offence punishable with death or imprisonment for life; such person shall not
be so released if such offence is a cognizable offence and he had been previously convicted of an
offence punishable with death, imprisonment for life or imprisonment for seven years or more, or
he had been previously convicted on two or more occasions of a non-bailable and cognizable
offence :

If it appears to such officer or Court at any stage of the investigation; inquiry or trial, as the case
may be, that there are not reasonable grounds for believing that the accused has committed nonbailable offence, but that there are sufficient grounds for further inquiry into his guilt, the
accused shall, subject to the provision of section 446-A and pending such inquiry, be released on
bail or, at the discretion of such officer or Court, on the execution by him of a bond without
sureties for his appearance as hereinafter provided.
When 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 6,
Chapter 16 or Chapter 17 of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or
attempt to commit, any such offence, is released on bail under sub-section (1), the Court may
impose any condition which the Court considers necessary1. in order to ensure that such person shall attend in accordance with the conditions of the
bond executed under this Chapter, or
2. in order to ensure that such person shall not commit an offence similar to the offence of
3.

which he is accused or of the commission of which he is suspected, or

otherwise in the interests of justice.

An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall
record in writing his or its reasons or special reasons for so doing.
Any Court, which has released a person on bail under sub-section (1) or sub-section (2), may, if
it considers it necessary so to do, direct that such person be arrested and commit him to custody.
If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is
not concluded within a period of sixty days from the first date fixed for taking evidence in the
case, such person shall, if he is if custody during the whole of the said period, be released on bail
to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate
otherwise directs.
If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and
before judgment is delivered, the Court is of opinion that there are reasonable grounds for
believing that the accused is not guilty of any such offence, it shall release the accused if he is in

custody, on the execution by him of a bond without sureties for his appearance to hear judgment
delive.
CANCELLATION OF BAIL
It is well settled that the grounds for cancellation of bail under Section 437(5) and 439(2) of the
Code are identical, namely, bail granted under Section 437(1) or 439(1) of the Code can be
cancelled broadly when one or more of the following conditions are fulfilled:
(i) The accused misuses his liberty by indulging in similar activity,
(ii) Interferes with the Course of investigation,
(iii) Attempts to tamper with the evidence,
(iv) Threaten witnesses or indulges in similar activities which would hamper smooth
investigation,
(v) There is liklihood of the accused fleeing away to another country.
(vi) Attempts to make himself scare by going underground graver offence.

ANTICIPATORY BAIL
Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the
Criminal Procedure Code. This provision allows a person to seek bail in anticipation of an arrest
on accusation of having committed a non-bailable offence. On filing anticipatory bail, the
opposing party is notified about the bail application and the opposition can then contest the bail
application in court. Anticipatory bail is a direction to release a person on bail, issued even
before the person is arrested.
Anticipatory bail is bail that is applied for prior to ones arrest or detention by an authority, but in
anticipation of the same. Section 438 of the Criminal Procedure Code prescribes that a person
may apply to an appropriate High Court or Court of Sessions for anticipatory bail when he has
reason to believe that he may be arrested on accusation of having committed a non-bailable
offence (note that this provision does not apply in every state in India). The filing of an FIR is
not a mandatory pre-condition for the filing of an application for anticipatory bail. When
directing the grant of anticipatory bail, the Court may set such conditions as it deems fit.
Anticipatory bail orders are usually time-bound and are not granted as a matter of right they
court must be satisfied that the person will not interfere with the investigation or hamper the
inquiry into the crime and that the accused would be subjected to undue harassment or
unjustified detention if the order were not to be granted. Anticipatory bail is usually not granted
for heinous crimes (rape, murder etc) or for certain specific offences under special statutes (such
as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Defence of
India Rules, 1971, etc).
Principle of grant of Anticipatory bail in non-bailable cases in India.
The following factors and parameters can be taken into consideration while dealing with the
anticipatory bail:
1. The nature and gravity of the accusation and the exact role of the accused must be properly
comprehended before arrest is made;
2. The antecedents of the applicant including the fact as to whether the accused has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence;

3. The possibility of the applicant to flee from justice;

4. The possibility of the accuseds likelihood to repeat similar or the other offences.
5. Where the accusations have been made only with the object of injuring or humiliating the
applicant by arresting him or her.
6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very
large number of people.
7. The courts must evaluate the entire available material against the accused very carefully. The
court must also clearly comprehend the exact role of the accused in the case. The cases in which
accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court
should consider with even greater care and caution because over implication in the cases is a
matter of common knowledge and concern;
8. While considering the prayer for grant of anticipatory bail, a balance has to be struck between
two factors namely, no prejudice should be caused to the free, fair and full investigation and
there should be prevention of harassment, humiliation and unjustified detention of the accused;
9. The court to consider reasonable apprehension of tampering of the witness or apprehension of
threat to the complainant;
10.Frivolity in prosecution should always be considered and it is only the element of genuineness
that shall have to be considered in the matter of grant of bail and in the event of there being some
doubt as to the genuineness of the prosecution, in the normal course of events, the accused is
entitled to an order of bail.
Section 438 of the Code may be attracted, when an influential person is the complainant against
a weak person or in the case of political rivalry between two persons if a case is instituted against
a political rival. However, there must be some indication that the allegations are false. The power
of granting bail under Section 438, Cr. P.C. is extraordinary and is exercised only in exceptional
cases. Where it appears that the person may be falsely implicated or where there are reasonable
grounds for holding that a person accused of an offence is not likely to otherwise misuse his
liberty. This power being of important nature is exercisable by higher judicial forums. It is

exercised in case of an anticipated accusation of non-bailable offence. The object of the Section
438, Cr.P.C. is that the moment a person is arrested, if he has already obtained an order from the
High Court or the Court of Session, he shall be released immediately on bail without being sent
to jail. The accused was charged of criminal conspiracy to commit murder. He had common
grudge against deceased. The trial of the case had almost come to an end and only few witnesses
remained to be examined. Some of witnesses to conspiracy had turned hostile. The accused is
politically influential and financially strong. He had capacity to influence witnesses. Releasing
accused when trial is at such precarious stage would not be proper. Moreover, accused are
residents of border districts and possibility of their fleeing from judicial process cannot be ruled
out. Accused were held, not entitled to be released on bail.
The use of expression reason to believe in Section 438 of the Code shows that the belief that
the applicant may be so arrested must be founded on reasonable grounds. Mere fear is not a
belief.
Reason to believe obligates the existence of objective material for the subjective satisfaction of
the person apprehending in arrest. The objective material must be capable of being examined by
the Court. Only then the Court, if satisfied, will grant relief under Section 438 of the Code. To
show the background of the case and the materials for the genuine apprehension, the Court may
insist for the affidavit to be filed by the petitioner, if not at least through supporting affidavit by
some person related to him, in order to enable the Court to decide whether to grant the relief
sought for or not. Section 438 is a procedural provision which is concerned with the personal
liberty of an individual who is entitled to plead, innocence, since he is not on the date of
application for exercise of power under Section 438 of the Code convicted for the offence in
respect of which he seeks bail. The applicant must show that he has reason to believe that he
may be arrested in a non-bailable offence. Use of the expression reason to believe that he may
be arrested in a non-bailable offence use of the expression reason to believe shows that the
applicant may be arrested must be founded on reasonable grounds. Mere fear is not belief for
which reason it is not enough for the applicant to show that he has some sort of vague
apprehension that someone is going to make an accusation against him in pursuance of which he
may be arrested. Grounds on which the belief on the application is based that he may be arrested
in non-bailable offence must be capable of being examined. If an application is made to the High

Court or the Court of Session, it is for the Court concerned to decide whether a case has been
made out of for granting the relief sought. The provisions cannot be invoked after arrest of the
accused. As the power under Section 438 of the Code being rather of an unusual nature, it is
entrusted only to the higher echelons of judicial service, namely, a Court of Session and the High
Court. Though Section 438 of the Code gives concurrent powers to High Court and Court of
Session, it is normally to be presumed that the Court of Session would be first approached for the
grant of anticipatory bail unless an adequate case for not approaching the said Court has been
made out. It is not always necessary that the Session Judge should be approached first. If the
petition for anticipatory bail has been rejected by the Sessions Court, the petitioner cannot
approach the High Court asking for anticipatory bail on the same ground. However, the Division
Bench of the Karnataka High Court held that a petition under Section 438 of the Code is
maintainable before the High Court even if a similar application has been made and rejected by
the Court of Session as, in the hierarchy, Court of Session is subordinate to the High Court, a
party who makes an application under Section 438 of the Code before the Sessions Court, could
approach the High Court if his application has been rejected by the Court of Session, but not vice
versa. Section 438 of the Code does not make any specific provision for issuing notice to the
public prosecutor and hearing the public prosecutor by the Court before granting anticipatory
bail. However, the Supreme Court decided that notice should be issued to the public prosecutor
or the Government Advocate before granting final anticipatory bail. It has been held that in order
to avoid the possibility of the person hampering investigation, the High Court or the Court of
Sessions may impose such conditions as it thinks fit while admitting him to anticipatory bail.
CANCELLATION OF ANTICIPATORY BAIL
The Supreme Court has ruled that anticipatory bail granted to an accused cannot be cancelled by
a court unless sufficient material is placed before it to justify the same.
"The court is free to refuse anticipatory bail in any case if there is material before it to justify
such a refusal," a bench of Justices D K Jain and R M Lodha said in a judgement.
But if no material is placed justifying the cancellation, the bail cannot be cancelled, the apex
court said.

The apex court passed the judgement while upholding an appeal filed by Savitri Aggarwal and
her family members challenging the Bombay High Court`s decision to cancel the anticipatory
bail granted to them by the sessions court in Amaravati in a dowry death case.
The high court had cancelled the anticipatory bail after Maharashtra government challenged the
same. Aggrieved by the cancellation, the accused appealed in the apex court. Citing the various
parameters laid down by the Constitution Bench in the Gurbaksh Singh Sibbia case, the apex
court said though the power conferred under Section 438 of (grant of anticipatory bail) the Code
(CrPC) can be described as of an extraordinary character, the same does not justify the
conclusion that the power must be exercised only in exceptional cases. Courts can impose
appropriate conditions while granting the anticipatory bail the bench said.
"While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed
under Section 438(2) so as to ensure uninterrupted investigation," the apex court said citing the
observations in the Constitution bench ruling. Similarly, the apex court cited the ruling to say
that filing of a First Information Report (FIR) is also not necessary for granting an anticipatory
bail. An anticipatory bail can be granted even after FIR is filed as long as the applicant has not
been arrested, the apex court added.

MISUSE OF BAIL PROVISION

The present money-based bail system's most "glaring weakness is that it discriminates against
poor defendants, thus running directly counter to the law's avowed purpose of treating all
defendants equally."' Under the present money-based bail system, the judge sets the amount of
bail according to a master bail schedule which is based on the seriousness of the criminal charge
and ignores any consideration of the defendant's ability to pay.' Since the indigent defendant
cannot pay the bail or even a bondsman the standard ten percent premium, he loses his pretrial
liberty and languishes in jail awaiting his trial. The Criminal Procedure Code, 1973 (Cr.P.C.
hereinafter), does not define bail, although the terms bailable offence and non-bailable offence
have been defined in section 2(a) Cr.P.C. 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 enforce, and non-bailable offence means any other offence". Further, ss. 436 to 450 set out
the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to
be paid by the accused to secure his release has not been mentioned in the Cr.P.C.. Thus, it is the
discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that
courts have not been sensitive to the economic plight of the weaker sections of society. The
unreasonable and exorbitant amounts demanded by the courts as bail bonds clearly show their
callous attitude towards the poor.
According to the 78th report of the Law Commission as on April 1, 1977, of a total prison
population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trials. For specific jails,
some other reports show: Secunderabad Central Jail- 80 per cent under-trials; Surat-78 per cent
under-trials; Assam, Tripura and Meghalaya-66 per cent under-trials.
One of the reasons for this is, as already mentioned above, is the large scale poverty amongst the
majority of the population in our country. Fragmentation of land holdings is a common
phenomenon in rural India. A family consisting of around 8- 10 members depends on a small
piece of land for their subsistence, which also is a reason for disguised unemployment. When one
of the members of such a family gets charged with an offence, the only way they can secure his
release and paying the bail is by either selling off the land or giving it on mortgage. This would

further push them more into the jaws of poverty. This is the precise reason why most of the under
trials languish in jail instead of being out on bail.