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“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


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. The term bail is not defined under CRPC, although the terms “ bailable offense” and “non-bailable offense” have been defined (Sec. 2a). “Bail” has been defined in the Law Lexicon as Security for the appearance of the accused person on giving which he is released pending trial or investigation. Govind Prasad v. State of  West Bengal, 1975 CriLJ 1249.

The distinction between bailable and non-bailable offenses 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 offenses as bailable or non-bailable is provided in Crpc; however, it is mostly the offenses which are punishable with imprisonment for not less than three years that are classified as non-bailable.

The concept of bail emerges from the conflict between the police power to restrict the liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the person accused of an offense. Bail is regarded as a mechanism whereby the State imposes upon the community the function of Securing the presence of the prisoners, and at the same time involves the participation of the community in the administration of justice. The provisions relating to the grant of bail are enshrined in Chapter XXXIII, under Sections 436-450 of Cr.P.C Offences have been classified into bailable and non-bailable and “cognizable” and “non-cognizable”. Officer-in-charge of the police station, Magistrate, Sessions Court, and High Court are empowered under Cr.P.C. to deal with bail, imposing conditions on bail, cancellation of bail or anticipatory bail. 


Provisions As To Bail And Bonds 

Sec. 436: In What Cases Bail To Be Taken

Sec. 436a: Maximum Period For Which An Undertrial Prisoner Can Be Detained

Sec.437: When Bail May Taken In Case Of Non-bailable Offence

Sec.437a: bail To Require Accused To Appear Before The Next Appellate Court

Sec.438: Directions For Grant Of Bail To Person Apprehending Bail

Sec.439: Special Powers Or High Court And Court Of Session Regarding Bail

Sec.440: Amount Of Bond And Reduction Thereof

Sec.441: Bond Of Accused And Sureties 

Sec.441A: declaration By Sureties

Sec.442: Discharge From Custody

Sec 443: Power to order sufficient bail when that first taken is insufficient.

Sec 444: discharge of sureties

Sec 445: Deposit instead of recognizance

Sec 446: Procedure when the bond has been forfeited

Sec 446A: Cancellation of bail and bail bond

Sec 447: Procedure in case of insolvency or death of surety or when a bond is forfeited

Sec 448: Bond required from minor

Sec 449: Appeal from orders under Section 446

Sec 450: Power to direct levy of the amount due on certain recognizance

The Code of Criminal Procedure, 1973 contains elaborate provisions relating to bails. Code provide different kinds of bail :-

  • Bail in Bailable offense (Section 436)

  • Bail in Non-bailable offense (section 437)

  • Anticipatory bail (section 438)

  • Ad interim bail

  • Bail after conviction (section 389)

  • Bail on default (section 167(2)


Section 436 provides for the release on bail of a person accused of a bailable offense. Section436 of Cr.PC is mandatory in nature and the court or the police have no discretion in the matter. Any accused person arrested for a bailable offense willing to provide bail must be released. The only discretion available with the police is to release the accused either on a personal bond or with sureties. In cases where the accused is unable to provide bail, the police officer must produce the accused person before the Magistrate within 24 hours of arrest as specified under s. 57 of Cr.P.C. Subsequently, when the person accused of an offense is produced before a Magistrate and is willing to furnish bail, then the Magistrate must release the accused person and the only discretion available is to release either on personal bond or a bond with sureties. The Magistrate cannot authorize the detention of a person who is willing to furnish bail with or without sureties even for the purposes of aiding the investigation.


Provision, as to bail in case of non-bailable offense, is laid down in Section 437 of the code. This section gives discretionary power to the Court (other than High court or Court of Session) to release an accused on bail in a non-bailable case. It lists down circumstances when bail will not be granted or when shall bail be granted with specific condition etc.


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