“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process” - Justice V.R. Krishna Iyer

One of the vital and well-recognized elements of Indian Criminal Jurisprudence is the concept of Bail. In law, it is defined as granting of release from the prison to a person awaiting trial on his/her request for a temporary period. The bail is granted against some security in form of cash, title to property or any monetary bonds, etc. to ensure that the person released on bail surrenders himself at the appointed date and period. If an individual fails to submit in front of the legal authority in time, then his possessions will be forfeited. There is discretion with the courts to either grant or deny the bail to the person held liable under criminal offense. An offense can be of two kinds- Bailable and Non- Bailable offense. The CrPC (Criminal Procedure Code) of 1973 does not define bail, instead, it defines these two types of offenses as follows: “Bailable offense means an offense 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 offense means any other offense". The security that needs to be kept by the prisoner granted bail is not mentioned in the code and thus, it is subject to the discretion of the authorized court to estimate and ascertain the same. Recently, in the case of Aasu vs the State of Rajasthan, the apex court of record issued a directive that a bail application should be disposed of within a week.

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Provisions under Bailable and Non- Bailable offenses

If the offense is bailable under section 436 of the CrPC, then the bail is granted to a person as a right before a police officer or magistrate’s court, as the case may be. No discretion of the court matters in this type of offense as bail is a right and not a favor. The Supreme court in the case of Rasiklal vs Kishore Khanchand Wadhwani held that: “As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable.” An amendment was made in CrPC in the year 2005 and section 436A of added to the code. There are instances where a person is kept in detention for a considerably long period even after the maximum time limit is over, this section provides for the release of a person charged for offense (other than murder) if he is kept in detention for more period than given in the code. In the case of a Non-Bailable offense, Section 437 empowers the court and an in-charge of a police officer to consider the question regarding the bail-in case of cognizable offense. Although the section gives authority to both, the power of the police officer is still restricted in some matters. In these cases, the bail should be granted with great caution as it is permissive and not an obligation under this section.

Is there a provision granting bail before arrest?

Section 438 of the CrPC has a provision of granting bail before even a person is arrested and the term used for this type of bail is Anticipatory Bail. This concept has gaged recognition over time since its inception. It is based on the fundamental right of life and personal liberty enshrined under Article 21 of the Indian Constitution. The necessity of having such a provision got impetus from the 41st Law Commission Report, 1969. This provision can be used by an individual whenever there is an anticipation of arrest being performed against himself for the commission of a non-bailable offense. When there are chances that a person may be held responsible on a false charge or fears of a case due to enmity with someone, then he/she can approach the session court or high court under section 438 of CrPC for granting bail in the event of arrest. The Anticipatory bail cannot be granted to a person who is declared as an absconder under section 82 of the CrPC, 1973. This was held in the case of State of M.P vs Pradeep Sharma

There are some particular conditions for granting/obtaining anticipatory bail:

  • The person cannot influence or apply coercion to any person having facts related to the case to be concealed from the court and police officers
  • The person shall not abscond from the country to leave it without being permitted by the authority.
  • The person shall always be available for interrogation as and when is required by the police officer.

In the case of Gurbaksh Singh Sibia vs the State of Punjab , the court observed that “The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest”. If a person has already been awarded anticipatory bail by the supreme court and the matter is in consideration for high courts, the trial court cannot grant regular bail to the accused.

Application for Bail and Procedure through court

An accused is required to submit his/her details- Background information, Present details, thumbprints, etc after a First Information Report (FIR) is filed against an individual. A person is allowed to apply for bail immediately after the arrest provided the charges against him are meagre. Otherwise, in case of serious offenses, it can be applied after 24 hours. But in cases of criminal offenses, the procedure varies:

  • In Anticipation of arrest by a police officer, a person can hire a legal professional for applying for granting anticipatory bail.
  • If an individual is already arrested, he can demand a lawyer for filing a bail application, the format for which is provided in CrPC.’
  • An amount of money or other material things like property suits or deeds, etc. are to be kept as security that the person will surrender in front of the court at the end of bail tenure.

The court in the case of Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav and Anr , the court held that the court is bound to provide a reason for prima facie allowing the bail to a person who is charged for a heinous offense. An order devoid of that reason would lead to non-application of mind and the bail won’t be considered. Factors that need to be considered while granting bail were given in the case of State of U.P. Through CBI vs Amarmani Tripathi .

Who can entertain an anticipatory bail plea?

The sections under CrPC empower the sessions court or high court to entertain the bail plea in case of a non-bailable offense. An amendment was brought in 2005 through the parliament which required courts to be more cautious while granting any such relief to the accused. If the anticipatory bail application filed under this section is rejected by the concerned court, the police can arrest that individual without a warrant based on the accusations against him, thus giving a special power to the investigating authority. In the case of Sandeep Kumar Bafna vs the State of Maharashtra , the apex court declared that there is no requirement of first filing a regular bail application to the magistrate and then getting rejected it to approach session or high court and instead, the high court and sessions court can directly entertain a bail application, thus, putting an end to an archaic practice.

Is bail plea rejected in any case?

The Supreme court in the case of State of Rajasthan vs Balchand alias Baliya laid a legal doctrine “Bail is a rule, jail is an exception”. The doctrine was given by Justice v. Krishna Aiyar. This principle is overridden by this Act as there are very stringent laws for granting a normal bail and is usually not provided easily. Section 43D(5) of the Unlawful Activities Prevention Act, 1967 provides that a person cannot be granted bail if the court finds some reasonable basis to believe that the accusations made against him are prima facie true. In the case of NIA vs Zahoor Ahmad Shah Watali , the standards for this requirement for prima facie true accusations were laid down. Besides this, in cases of extremely serious offenses, the application for the same is rejected.


The discussion on bail application gets a kickstart as and when an exceptional case comes in vogue. It is a discretionary power with the judges although it is a right of an individual in certain special kinds of cases. The apex court has reiterated time and again that “Bail is a rule, Jail is an exception” because it is the right of an individual under the Indian Constitution to life and liberty. There are a plethora of bail applications pending owing to the pandemic which has brought the world to a halt. The surety kept in exchange for bail also put a huge burden on the accused to pay for. The supreme court, in the case of Moti Ram vs the State of MP , observed the issue of unreasonably high sureties as a human rights problem. The court then suggested that surety amounts be determined by considering relevant variables such as the socio-economic location of the accused person. In Sushila Agarwal vs The State of Delhi , the court held that no limit can be put upon the anticipatory bail. "The protection granted to a person under Section 438 CrPC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time." Thus, we can say that it plays a major role in the criminal jurisprudence of the country and should be given due importance by the court of record as it is directly connected to a person’s right to live a peaceful and blameless life.

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  •  Section 2(a), Criminal Procedure Code, 1973
  • Rasiklal V/s Kishore Khanchand Wadhwani (AIR 2009 1341)
  • State of M.P vs Pradeep Sharma (2014) 2 SCC
  • Gurbaksh Singh Sibbia vs the State of Punjab AIR 1980 SC 1632
  • Rukmani Mahato vs. State of Jharkhand (S.L.P Criminal no.2411 of 2016 dt.03-08-2017)
  •   Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav and Anr 2004 7 SCC 528
  • U.P. Through CBI vs Amarmani Tripathi (2005) 8 SCC 21
  • Sundeep Kumar Bafna vs. State of Maharashtra & Anr Criminal appeal no. 689 of 2014 dt.27.03.2014.
  • 1978 SCR (1) 535
  • Moti Ram vs the State of MP 1978 AIR 1594
  • Nikita Sonavane and Others, Granting bail is the rule,
  • Sushila Agarwal vs The State of Delhi (2020) 5 SCC 1