What is Bail ? What are its types? Explain in Detail with case laws.
Concept of bail its types with its case laws
Introduction of Bail
The concept of bail is an important part of criminal jurisprudence, closely linked to the fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India. The term “bail” originates from the French word Baillier, meaning to deliver or to give. In law, bail means the conditional release of an accused person from custody, on the assurance that he will appear before the court whenever required.
Bail does not amount to acquittal or discharge; it is only a temporary release pending investigation, trial, or appeal. The main purpose of bail is to strike a balance between two competing interests: the individual’s right to freedom and the state’s duty to ensure justice and maintain law and order.
In the Indian legal system, the provisions relating to bail are primarily governed by the Code of Criminal Procedure, 1973, supported by judicial interpretations. The Supreme Court has emphasized in several cases that “bail is the rule, jail is the exception,” highlighting that unnecessary detention before conviction must be avoided unless absolutely necessary.
Here we will learn the concept of bail its types with case laws
Meaning of Bail
The term “Bail” comes from the old French word Baillier, meaning to deliver or to give. In legal terms, bail means the release of an accused person from custody, with or without sureties, on the condition that they will appear at the appointed time and place before the court. Bail does not mean acquittal; it is simply a temporary release during the pendency of investigation, trial, or appeal. Bail refers to the conditional released of an accused individual from custody, with requirements established by the court to guarantee their appearance at upcoming legal proceedings. Black’s Law Dictionary describes it as a security like money or bond, often required by a court to release a prisoner who must appear later.
In Gurbaksh Singh v. State of Punjab 1980
The SC held that grant of bail means to set at liberty a person arrested or imprisoned on security being taken off his appearance in the court on a particular day. The word ‘bail’ covers release on one’s own bond.
Here we will discuss the concept of bail its types with its case laws.
Definition of Bail under Bharatiya Nagarik Suraksha Sanhita
The Criminal Procedure Code 1973 doesn’t define the terms bail, bail bond, and bond, but the BNSS has introduced these terms.
According to the definition clause under Section 2(1) of BNSS:
‘(b) “bail” means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond;’
‘(d) “bail bond” means an undertaking for release with surety;’
‘(e) “bond” means a personal bond or an undertaking for release without surety.
Objective of Bail
To balance two conflicting interests:
Individual liberty of a person who is presumed innocent until proven guilty (Article 21, Constitution of India).
Societal interest in ensuring that an accused does not abscond, tamper with evidence, or commit further offences.
Thus, bail is a judicial mechanism to protect personal liberty while ensuring justice and fair trial.
Legal Framework in India
The law of bail in India is governed mainly by:
Code of Criminal Procedure, 1973 (CrPC)
Indian Penal Code, 1860 (IPC) (indirectly, through classification of offences)
Judicial precedents
Constitution of India (Article 21 & 22)
Here we will discuss the concept of bail its types with its case laws.
Classification of Offences for Bail
Bailable Offence (Section 2(a), CrPC)
An offence shown as bailable in the First Schedule of the CrPC or made bailable by law.
Right to Bail → The accused has a legal right to be released on bail. Court or police officer cannot refuse.
Example: Minor offences like simple hurt, defamation, etc.
Non-Bailable Offence
Not defined in detail in CrPC, but means offences not classified as bailable.
No absolute right to bail → Granting bail is at the discretion of the court.
Example: Murder, rape, kidnapping, terrorism-related offences.
Constitutional Aspect
Article 21 – No person shall be deprived of life or personal liberty except according to procedure established by law.
Bail is thus linked with the fundamental right to personal liberty.
Courts have stressed that “bail is the rule, jail is the exception.” (Hussainara Khatoon v. State of Bihar, 1979)
Here we will discuss the concept of bail its types with its case laws.
Important Judicial Decisions
Gudikanti Narasimhulu v. Public Prosecutor (1978)
Supreme Court held that bail decisions should balance individual liberty and societal interest.
State of Rajasthan v. Balchand (1977)
Bail is the rule and jail is the exception.
Sanjay Chandra v. CBI (2011)
Bail should not be refused merely as punishment before trial; pre-trial detention should not be prolonged unless necessary.
Arnesh Kumar v. State of Bihar (2014)
Guidelines issued to prevent unnecessary arrests in offences punishable up to 7 years.
Bail vs. Bond
Bail: Temporary release from custody.
Bond: A written undertaking by accused/surety ensuring appearance before court.
May involve monetary deposit or surety guarantee.
Cancellation of Bail
Court has power to cancel bail if
Accused misuses liberty.
Tries to influence witnesses.
Commits further offences.
Attempts to abscond.
(Sections 437(5) & 439(2), CrPC)
Here we will discuss the concept of bail its types with its case laws.
Characteristics of Bail
Temporary Release
Bail is not a permanent freedom; it is only a conditional and temporary release from custody.
Conditional in Nature
The accused must comply with conditions imposed by the court (e.g., appearing at hearings, not tampering with evidence).
Not an Acquittal
Bail does not mean the accused is innocent; it only suspends custody until trial or investigation.
Discretionary Power of Courts
In non-bailable offences, the grant of bail is at the discretion of the court, based on facts and circumstances.
Based on Presumption of Innocence
Bail rests on the legal principle that an accused is presumed innocent until proven guilty.
Can be Cancelled
Bail can be revoked if conditions are violated or if the accused misuses liberty.
Features of Bail
Right in Bailable Offences
In offences classified as bailable, the accused has a legal right to bail, and authorities cannot refuse.
No Absolute Right in Non-Bailable Offences
In serious/non-bailable offences, bail is not a matter of right but depends on the court’s satisfaction.
Forms of Bail
Includes regular bail, anticipatory bail, interim bail, and statutory (default) bail.
Surety and Bond Requirement
Often bail is granted on execution of a bond, with or without sureties, to ensure compliance.
Balance Between Liberty and Justice
Bail ensures protection of personal liberty while also safeguarding societal interests.
Constitutional Backing
Rooted in Article 21 (right to life and personal liberty) of the Constitution.
Judicially Evolved Principles
Courts have evolved guiding principles like “bail is the rule, jail is the exception.”
Advantages of Bail
Protection of Personal Liberty
Bail safeguards the constitutional right under Article 21 (Right to Life and Personal Liberty) by preventing unnecessary pre-trial detention.
Ensures that an accused, who is presumed innocent until proven guilty, is not punished before conviction.
Presumption of Innocence
Our criminal law rests on the principle that every accused is innocent until proven guilty. Bail upholds this presumption by allowing the accused to live freely during trial.
Opportunity to Prepare Defence
Being out on bail gives the accused better access to lawyers, evidence, and witnesses to prepare for trial.
Reduces the disadvantage of defending a case while in custody.
Reduces Overcrowding in Prisons
Bail prevents jails from being overcrowded with under-trial prisoners, which is a major issue in India.
Helps in reducing the burden on prison administration.
Economic and Social Stability
An accused on bail can continue working, supporting their family, and contributing to society until the trial ends. Prevents unnecessary loss of livelihood.
Prevention of Misuse of Arrest Powers
Bail provisions (especially anticipatory bail) act as a safeguard against arbitrary and wrongful arrests by police.
Disadvantages of Bail
Risk of Absconding
The accused might misuse liberty and escape, making it difficult for the court to proceed with trial.
Possibility of Tampering with Evidence or Witnesses
An accused on bail may influence or threaten witnesses, destroy evidence, or manipulate the investigation.
Unequal Access (Rich vs. Poor)
Bail often requires money or sureties. Wealthy accused can secure bail more easily than poor or marginalized individuals. Leads to inequality in the justice system.
Public Safety Concerns
In cases of habitual offenders or serious crimes (like rape, terrorism, murder), granting bail can pose a threat to society. The accused may commit further offences while on bail.
Delay in Justice
If an accused misuses bail by dragging proceedings, it can cause delay in delivering justice to victims.
Scope for Judicial Discretion Misuse
In non-bailable offences, bail depends on judicial discretion. Inconsistency or bias in decisions may lead to injustice.
Aim of Bail
The primary aim of bail is to ensure a balance between individual liberty and the interests of justice. It is not intended to set the accused free permanently but only to secure their release from custody, subject to conditions, until the trial is complete.
Key Aims of Bail
Protection of Personal Liberty
To safeguard the constitutional right of an individual under Article 21 (Right to Life and Personal Liberty) and prevent unnecessary pre-trial detention.
Ensure Presence of the Accused
Bail ensures that the accused appears before the court whenever required, without being confined in jail during the entire trial.
Presumption of Innocence
To uphold the principle that an accused is presumed innocent until proven guilty. Bail prevents punishment before conviction.
Fair Opportunity for Defence
By being out of custody, the accused gets a fair chance to consult lawyers, gather evidence, and prepare their defence properly.
Prevent Overcrowding in Prisons
Bail reduces the burden on jails by preventing large numbers of under-trial prisoners from being unnecessarily detained.
Prevent Misuse of Arrest Powers
Especially in cases of anticipatory bail, the aim is to protect individuals from arbitrary or motivated arrests by police.
Balance Between Liberty and Security
Bail aims to strike a balance between the right of an individual to remain free and the need of society to ensure justice, maintain law and order, and protect victims/witnesses.
Here we will discuss the concept of bail its types with its case laws.
Types of Bail
Regular Bail (Sections 437 & 439, CrPC)
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 (Section 480 and Section 483 of BNSS) . Granted to an accused after arrest and custody. Accused applies before Magistrate or Sessions/High Court.
Sanjay Chandra v. CBI (2011)
The Supreme Court granted regular bail to Sanjay Chandra and other accused, holding that
Bail should not be withheld as a form of punishment before conviction. The object of bail is to secure the presence of the accused during trial, not to keep him in custody unnecessarily. The seriousness of the offence alone cannot be a ground to deny bail, especially when the trial is likely to take a long time. Prolonged pre-trial detention violates the principle that “bail is the rule, jail is the exception.
Anticipatory Bail (Section 438, CrPC)
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 (Section 482 of BNSS). Pre-arrest bail. Granted by Sessions Court or High Court when a person anticipates arrest for a non-bailable offence. Protects individual liberty and prevents misuse of arrest power.
Gurbaksh Singh Sibbia v. State of Punjab (1980)
Anticipatory bail is constitutional and valid. Section 438 CrPC should be interpreted liberally to protect individuals from arbitrary arrests. The courts must use their discretion case by case; no rigid rules. Bail conditions must ensure balance between individual liberty and investigative needs.
Interim Bail
Interim bail is a temporary form of release granted to individuals during the pendency of an application for anticipatory or regular bail, providing them a brief respite from custody. It allows the accused to remain free for a limited time while they prepare for bail hearings. Temporary bail for a short period. Granted while application for regular or anticipatory bail is pending.
Lal Kamlendra Pratap Singh v. State of Uttar Pradesh (2009)
The Supreme Court held that courts have the power to grant interim bail while a regular/anticipatory bail application is pending. If protection is not given, the purpose of bail provisions would be defeated since the accused could be arrested before his application is decided.
Statutory Bail (Default Bail, Section 167(2), CrPC)
Statutory bail, also known as default bail, arises when the police fail to file a report within a specified time under Section 187(2) of the BNSS. It is an inherent right of the accused if chargesheet isn’t filed in the specified time, applicable regardless of the offense’s nature, and can be granted by Magistrates of the First or Second Class. If police fail to complete investigation within prescribed period (60 days/90 days depending on the offence), the accused gets right to bail.
Uday Mohanlal Acharya v. State of Maharashtra (2001)
The accused’s right to statutory bail crystallizes the moment the statutory period (60/90 days) ends and he applies for bail. Filing of the charge sheet after that cannot defeat this right. Statutory bail is an “indefeasible right” of the accused under Section 167(2) CrPC.
Here we will discuss the process of Bail in detail
Bail Process in India
Stage |
Process |
Details |
|---|---|---|
1. Arrest |
Police arrest the accused |
Accused is taken into custody under CrPC provisions. |
2. Production before Magistrate |
Within 24 hours |
As per Article 22(2) of Constitution and Section 57 CrPC, accused must be produced before Magistrate within 24 hours. |
3. Application for Bail |
Accused or lawyer applies |
One can file an application before the Police for bailable offences or before the Magistrate, Sessions Court, or High Court for non-bailable offences. |
4. Type of Bail Considered |
Depends on offence |
– Bailable offence → Bail is a right (Sec. 436 CrPC).– Non-bailable offence → Bail is discretionary (Secs. 437, 439 CrPC).– Anticipatory bail (before arrest) → Sec. 438 CrPC. |
5. Court’s Consideration |
Court examines factors |
Nature of offence, gravity, evidence, risk of absconding, chance of tampering with evidence/witnesses. |
6. Conditions Imposed |
Surety / Bond |
Court may impose conditions like furnishing bond, surety, surrender of passport, regular appearances. |
7. Grant or Refusal of Bail |
Judicial decision |
Granted: Accused is released on bond/surety.Refused: Accused remains in custody. |
8. Cancellation of Bail |
Possible later |
If accused misuses liberty (e.g., absconds, threatens witnesses), court may cancel bail under Sec. 437(5) or Sec. 439(2) CrPC. |