Bail being a subject matter of an accused is not defined anywhere in Law. But in
layman's language, it can be stated as the temporary release of an accused
person awaiting trial, on a condition that a sum of money is lodged to guarantee
their appearance in Court with Surety. Under the Code of Criminal Procedure, we
have certain provisions that are referred to as bail in one way or another.
Section 436 to Section 450 of the Code of Criminal Procedure are the basic
sections for granting of bail and bonds in criminal cases.
Apart from all these
sections, under Cr.PC, we have some circumstances in which the release of Bail
is Authoritative, such as the right to release on bail if the investigation is
not completed within the prescribed number of days and so on. Bail is one of the
cherished rights, claims, or privileges of an accused person following the
concept of every accused person is innocent before he is proved guilty.
Objective And Definition
The main purpose or objective of arrest, detention, and custody of the accused
person is primarily to secure his appearance before the court at the time of
trial and to ensure that in case he is found guilty he is available to receive
the prescribed punishment and penalty under the law. It can be stated that the
principal objective of bail is to secure the attendance of the accused during
the time of trial and to ensure that he does not flee from Justice and does not
tamper with the pieces of evidence.
The word Bail is not defined anywhere in the code of Criminal Procedure, whereas
the Code of Criminal Procedure 1898 and 1973 have defined the word bailable
and non-bailable offense
, in Section 4(1)(b) and Section 2(a),
The Code of Criminal Procedure 1973, defined bailable offence, as an offence
which is shown as bailable in Schedule 1, or which is made bailable by any other
law for the time being in force and the non-bailable offence has been defined to
mean any other offence.
The Law Lexicon defined:
bail as the security for the appearance of the accused person on which he is
released pending trial or investigation
The Black Law's dictionary defined:
bail as 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.
Reports Of Law Commission Of India
41st Report- Law Commission Of India
In the 41st report of the Law Commission of India, law commissions made its
recommendations and the recommendations regarding bail were considered and
incorporated by Parliament while the creation of Code of Criminal Procedure,
1973 with the purpose of replacing the Code of Criminal Procedure 1898. The Law
Commission in its report recapitulates the need to preserve the basic principles
regarding bail and suggested some changes in the working aspect of the system.
Law Commission compiled the recommendations regarding bail into certain
- bail is a matter of right only if the offense is bailable,
- if the offense is non-bailable, bail is a matter of discretion,
- bail should not be granted if the offence is punishable with the death penalty
or imprisonment for life.
- in respect of offenses punishable with death or imprisonment for life, the
session's court and the High Court ought to have even a wider discretion in the
matter of granting bail.
Grating of bail relies on an assumption that persons accused of serious offences
with the death penalty or imprisonment for more than 7 years, may again commit
serious offenses or tamper with the during his release on bail pieces of
evidence. Law Commission in its report stated that in cases where the liberty of
the accused was to be abused, the bail can be cancelled .
3.2 48th Report- Law Commission Of India
In the 48th Report of Law Commission of India, Para 31, discusses the provisions
of the grant of Anticipatory Bail, The commission added in its report that the
Anticipatory bail should be exercised in very exceptional cases. The law
Commission was also of the viewpoint that in order to ensure that the provision
of anticipatory bail does not get violated or abuse at the instance of
unscrupulous petitioners the final order shall be made only after the notice of
the public Prosecutor. Further, the Law Commission under the Para 33 stated
that the initial order of the court regarding anticipatory should only be an
The relevant section should make it clear that the direction can be issued for
reasons to be recorded, and that if the Court is satisfied that such a direction
is necessary for the interest of justice. The Law commission added, it will
also be convenient to provide that notice of the interim order as well as of the
final orders will be given to the superintendent of police.
154th Report-Law Commission Of India
The 154th Report of Law Commission of India, in its Chapter VI, deals with the
issue of bail, anticipatory bail, and other issues like sureties.
Provisions relating to Bail is discussed under chapter XXXIII, Sections 436 to
450 of the Code of Criminal Procedure, 1973. The expression bail-in real essence
means that releasing of an accused for minor offences or for serious offences on
the discretion of the court, so that the accused may attend the court
proceedings by signing a bond with sureties that he will appear before the
court, whenever the court calls him for the attendance during the trial or while
investigation for the matter he is charged.
The Commission considered an issue that the bail system discriminates against
the poor and poor are not able to furnish the bail bond on account of their
poverty but for the wealthier persons, it would be easy to secure a bail bond as
they can afford for the bail.
The Supreme Court in the case of Moti Ram v. State of Madhya Pradesh stated
that the bail covers both releases on one's own bond, or without securities.
203 Rd Report- Law Commission Of India
The 203rd report of the Law Commission of India dealt with Section 438 of the
Code of Criminal Procedure, 1973 which has been amended by the Code of Criminal
Procedure (Amendment) Act, 2005. Section 438 is basically known as the
application of bail in anticipation of arrest.
Recommendations under Clause 38 to amend Section 438 of the Code of Criminal
Procedure code, to the effect that the:
- Court of Session or High Court shall only exercise the power of granting
- If the Court of Session or High Court does not reject the anticipatory
bail applications and makes an interim order of bail, it should give notice
to the Superintendent of Police and Public
- Prosecutor and the questions of bails would
again be re-examined in the contention of the parties.
- It is important for the presence of a person in the court seeking anticipatory
bail subject to certain exceptions.
Circumstances In Which Release Of Bail Is Authoritative
4.1 Cases other than those of Non- Bailable Offences [Sec. 436]
Section 436 of the Code of Criminal Procedure states that in what cases bail to
Section 436(i) states that when any person who is arrested or detained in a
Bailable offence without a warrant by a police officer, such person shall be
granted bail or to be released on bail, even the Section 436(i) states that
the Court or Police officer, can also discharge the arrested or detained person
without sureties for his appearance.
Whereas, Section 436(ii), states that in any case if an accused person fails
to comply with the conditions of bail-bond as, the time and place of attendance,
The court refused to release the accused person on bail, moreover Court can also
impose a penalty on it as well.
If the accused person has served half of his punishment as prescribed in the
Penal Code for the offence he is charged, at that time he can be released on
bail but the same cannot be done in case of the death penalty.
4.2 Default Bail ( Section 167(2))
Emphasizing Section 57 of Code of Criminal Procedure Code, it states that the
accused arrested not to be detained more than 24 hours except where the
circumstances are reasonable, and such period shall only be exceeded with the
special order from the Magistrate under Section 167, in addition, 24 hours
should be excluded for the time necessary for the journey from the place of
arrest to Magistrate's office.
Section 167, states for the procedure when the investigation cannot be
completed within 24 hours, the magistrate can extend the time period for 15 days
for the investigation. The magistrate cannot extend the time period total for 90
days, where the investigation relates to an offense punishable with death or
imprisonment for a term of not less than 10 years of imprisonment for life.
Further, 90 days, in a case where the investigation relates to any other
offenses as prescribed above and on the expiry of the said period of 90, or 60,
as the case may be, the accused person shall be released on bail with certain
Recently, The Supreme Court in the case of Bikramjit Singh v. State of Punjab
A 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the
right to default bail is not a mere statutory right under the first proviso to
Section 167(2) CrPC, but is part of the procedure established by law under
Article 21 of the Constitution of India, which is, therefore, a fundamental
right granted to an accused person to be released on bail once the conditions of
the first proviso to Section 167(2) are fulfilled.
The Supreme Court in the case of S. Kashi v. State
 held that Right
For Default Bail Is Indefeasible Right.
The Court said:
The debate on Section 167 must also be looked at from the perspective of the
expeditious conclusion of the investigation and from the angle of personal
liberty. This Court also held that the right for default bail is an indefeasible
right which cannot be allowed to be frustrated by the prosecution.
It further added:
The scheme of Code of Criminal Procedure as noticed above clearly delineates
that provisions of Section 167 of the Code of Criminal Procedure give due regard
to the personal liberty of a person. Without submission of charge sheet within
60 days or 90 days, as may be applicable, an accused cannot be detained by the
Police. The provision gives due recognition to personal liberty.
4.3 No reasonable ground for believing an accused to be guilty(Section 437(2)
Section 437(2) of the Code of Criminal states that When any person accused
of or suspected of the commission of any non-bailable offense is arrested or
detained without warrant by a police officer or an accused person appears before
a court, as the case may be, that there are no reasonable grounds for believing
that the accused has committed a non-bailable offense, but there are sufficient
grounds for further inquiry into his alleged guilt, then, the accused shall,
subject to the provisions 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. An officer or a Court
releasing any person on bail under this provision is required to record his or
her reasons for doing so.
The word transit in simple words means that while in the journey, whereas the
word Bail means Release from the custody of Police. Transit Bail can be
defined as the bail by the Court not having jurisdiction over the place of the
For example; 'A' a person who commits a crime in Rajasthan and is arrested in
Delhi, now Delhi Court is having jurisdiction to grant bail to the accused under
Section 81 of the Code of Criminal Procedure Code, 1973.
Transit Bail is not defined anywhere under the Code of Criminal Procedure Code,
but Section 79 to 81 of the Code of Criminal Procedure, 1973 lays down the
procedure for it.
Section 79 states about the warrant directing the police officer for
execution outside the jurisdiction, as when a warrant is directed to a police
officer for the execution beyond the local jurisdiction of the court issuing it,
he is authorized to take it for the endorsement to the Executive Magistrate or
the police officer not below the rank of an officer, who is in charge of the
police station, within the local limits where the warrant is to execute, whereas
such magistrate or police officer shall endorse his name and shall give him
authority to execute it. Same is with an exception that police officer may
arrest a person in another jurisdiction without endorsement or authorization
from Magistrate or Police officer as to where reason is believed that such
authorization or delay would prevent such execution.
Section 80 lays down the procedure for the arrest of the person against whom
the warrant is issued, it states that a place where a warrant of arrest is
executed, a person arrested shall be produced within the local magistrate where
the warrant is being issued.
Section 81 lays down the procedure by Magistrate before whom such arrested
person is brought, it states that the Executive Magistrate or District
Superintendent of Police or Commissioner of Police as if the offense is bailable,
and such person is ready and willing to give bail to the satisfaction of such
Magistrate, District Superintendent or Commissioner, or a direction has been
endorsed under section 71 on the warrant and such person is ready and
willing to give the security required by such directions the Magistrate,
District Superintendent or Commissioner shall take such bail or security, as the
case may be, and forward the bond, to the Court which issued the warrant.
Starting from Section 79 for issuing of a warrant of arrest to outside the
Jurisdiction to Section 81, the Executive Magistrate or District
Superintendent of Police or Commissioner of Police can grant bail shows the
whole process of Transit Bail under the Code of Criminal Procedure, 1973.
However, the bench observed it was settled law that the jurisdiction lies with
the concerned court of the state where the FIR is lodged and the transit bail
is granted for making a person to appear before the competent court.
The word anticipatory
is not defined anywhere in the Code of Criminal
Procedure Code, 1973, but in simple language, it means that a direction is given
by Session Court or High Court to Police Offer to release the person on Bail
before he is arrested in the case of non-bailable offences or it is an order by
the Court that when a person arrested shall be released on bail.
Section 438 is the provision of the code of criminal procedure code which
provides discretion for grant of bail to person apprehending arrest
6.1 Jurisdiction & Discretionary power of Court to grant Anticipatory Bail
Section 438(1) provides a discretionary power to the Session Court and High
Court with a word that court may, if it thinks fit,
and further it states
that any person who has any reason to believe that he may be arrested on an
accusation of having committed non-bailable offenses, he may apply and it is
only the discretion of the court whether to release on bail or not and if the
court thinks that a person to be released on bail than the court may direct in
the event of such arrest to release him on bail.
In the case of Directorate of Enforcement v P.V. Prabhakar Rao
Supreme Court held that Anticipatory bail can only be granted by a High Court or
a Sessions Court only after they have exercised their power of judicial
Section 438 of Cr.PC is a procedural provision concerned that concerns itself
with the personal liberty of each and every individual. Contrary to ordinary
bail, anticipatory bail allows a person to be released on bail even before
In the case of Gurbaksh Singh Sibia vs the State of Punjab
five-judge bench of the Supreme Court led by Chief Justice Y V Chandrachud ruled
that Section 438 (1) is to be interpreted in the light of Article 21 of the
Constitution (protection of life and personal liberty).
The Bench Observed:
It may perhaps be right to describe the power (of anticipatory bail) as of an
extraordinary character. But this does not justify the conclusion that the power
must be exercised in exceptional cases only, because it is of an extraordinary
character. We will really be saying once too often that all discretion has to be
exercised with care and circumspection depending on circumstances justifying its
In the case of Suresh Vasudeva v. State
, the Delhi High Court held
that Section 438(1) of Cr.P.C. applies only to non-bailable offences.
6.2 Reasonable Apprehension of Arrest
Whereas, the High court or Session Court during the time of granting bail may
include conditions and such bail to be considered as Conditional Anticipatory
bail. And conditions to be as follows:
- That a person released on bail shall be available for the interrogation
by a police officer, whenever he is required to be
- That the person shall not, directly or indirectly, make any inducement,
threat or promise to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the Court or to any police
- That a person shall not leave India, without the permission of the
As may be imposed by Section 437(3), as if the bail were granted under
6.3 Arrest without a warrant in case of Anticipatory Bail
Section 438(3) states that If such person is thereafter arrested without
warrant by an officer in charge of a police station on such accusation, and is
prepared either at the time of arrest or at any time while in the custody of
such officer to give bail, be shall be released on bail; and if a Magistrate
taking cognizance of such offense decides that a warrant should issue in the
first instance against that person, he shall issue a bailable warrant in
conformity with the direction of the Court under subsection (1).
6.4 No Anticipatory Bail after Arrest
Accused do not have a remedy under Section 438, after the arrest at that
time he can only seek remedy under Section 437 or Section 439 if he wishes to be
released on bail for the offenses for which he is arrested and in other cases,
the accused can apply for default bail under the Section 167(2) but not in the
case of Death Sentence or imprisonment of life. Whereas, Section 438 cannot be
invoked at the time of the arrest.
Bail is a matter of a right, but at the same time, it depends on the discretion
of the court, that whether the Court of Session and High Court to grant bail or
not. It can be stated that the failure from the side of the accused in
furnishing the bail bond can result in the cancellation of bail or it can be
said that the bail is granted at that period of time when the accused furnish
the bail bond.
The factor that while granting bail, the accused needs to furnish the bail bond,
is somehow still discriminatory in the present society. The 154th Law Commission
Report of India considered the same issue that the bail system discriminates
against the poor and poor are not able to furnish the bail bond on account of
their poverty but for the wealthier persons, it would be easy to secure a bail
bond as they can afford for the bail.
The laws need to be more strengthening regarding it and the discriminatory
practices in the courtrooms need to be abolished. Further, the process of bail
is a legitimate process, and the accused needs to appear before the court
whenever he is directed to.
The researcher, in this article, has tried to explain all the provisions related
to bail and emphasized on Law Commission of India reports for clarity. Further
in this article researcher explained about two different types of bail apart
from Interim and Regular i.e Default and Transit Bail and tried to shows that
some of the discriminatory practices by the court at the time of granting bail.
Further, this Article is open for further research, reference and law report.
- Section 4, Code of Criminal Procedure, 1898.
- Section 2, Code of Criminal Procedure, 1973.
- Law Lexicon, Ramanth Iyer, 3rd Edition.
- Black's Law Dictionary, 177, 4th Edition.
- Law Commission of India, 41st Report on tile Code of Criminal Procedure,
Vol. J. p. 311 (969).
- 48th Law Commission Report. http://lawcommissionofindia.nic.in/1-50/Report48.pdf
- 1979 SCR (1) 335.
- Code of Criminal Procedure, 1973.
- Section 436-A, Code of Criminal Procedure, 1973.
- Supra note 10.
- Section 167(2)(a)(i), Code of Criminal Procedure, 1973.
- Section 167(2)(a)(ii), Code of Criminal Procedure, 1973.
- 2020 SCC OnLine SC 824
- 2020 SCC OnLine SC 529
- Supra Note 10.
- Section 437(2), Code of Criminal Procedure, 1973.
- Section 437(4), Code of Criminal Procedure, 1973.
- Section 79, Code of Criminal Procedure CODE, 1973.
- Section 80, Code of Criminal Procedure Code, 1973.
- Section 81, Code of Criminal Procedure Code, 1973.
- Supra Note 10.
- Supra Note 21.
- Supra Note 23.
- Section 438, Code of Criminal Procedure Code, 1973.
- Supra note 10.
- AIR 1997 SC 3868
- 1980 AIR 1632
- 1978 CriLJ 677
- Section 438(2), Code of Criminal Procedure Code, 1973
- Section 438(2)(i), Code of Criminal Procedure Code, 1973.
- Section 438(2)(ii), Code of Criminal Procedure Code, 1973.
- Section 438(2)(iii), Code of Criminal Procedure Code, 1973.
- Supra Note 10.
- Supra Note 10.
- Supra Note 28.
- Supra Note 27.
- Rishab Bhandari - Final Year (BBA.LLB) Chandigarh University.
Mail id- [email protected], Ph no: +91-9878134703.
- Anshu Prasad - Third year, B.A. LL.B (Hons.) -
National University of Study and Research in Law, Ranchi.
Mail id- [email protected], 6202903637