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Author: Prasun Tripathi, III year of B.A. LLB. (Hons) from Gujarat National Law University

Object and definition of bail

The person accused of a crime is arrested or detained in custody to ensure their presence before the court at the time of criminal proceedings against him and in case he is found guilty to be present to receive the sentence. If however, their presence before the court can be reasonably ensured without depriving him of his liberty there is no sense in detaining the person. Bail was introduced keeping this in mind. If a person is assumed to be innocent until proven guilty, pre-trial detention would go against that assumption and will be unfair and unjust to arrest the accused. The jailed accused is deprived of his right to prepare for his defence.

However, if a person is accused of a serious crime and the chances of his conviction is high he is likely to jump bail or abscond to avoid the trial and the sentence. In such cases, it would be unwise to release him on bail to ensure his liberty. On the other hand, a person released on bail is violating the terms of bail bond, obstructing fair trial, is likely to commit more offences; it would be unjust for society to let him loose on bail just to ensure his liberty is not obstructed. Keeping the above scenarios in mind the legislature while drafting the law of bail has applied its wisdom to provide the courts with the power of discretion whether to grant bail or not. The court has to decide it judiciously on a case to case basis.

Bail is nowhere defined in the code, the however bailable and non-bailable offence has been defined under the code. What is understood by bail is to “procure the release of a person from lawful custody by promising to appear at the time and place specified and to submit to the court's jurisdiction and judgement.” In Kamlapati Trivedi v. State of West Bengal, the Supreme Court described bail as “a technique developed for effecting the synthesis of two basic concepts of human value, namely, the right of an accused person to enjoy his freedom and the public interest on which a person's release is conditional on the surety to produce the accused person in the Court to stand trial.” Further in State of Rajasthan v. Balchand, the Supreme Court ruled that the basic rule is bail, not jail.

Bailable & non-Bailable Offence

According to sec 2(a) “bailable offence” means any offence that is listed as bailable in the first schedule, or that is made bailable by any other statute in effect at the time, is a "non-bailable offence." The code has not provided any clear cut test or criteria to determine bailable and non-bailable offence. However, all serious offences, defined as those punishable by three years or more in prison, are considered non-bailable offences. But there are exceptions on both sides.

If a person accused of a bailable offence is arrested without a warrant it is his right to be released on bail. However, if the person is accused of a non-bailable offence this does not mean that he is not entitled to get bail, it simply means that it is now left to the discretion of the court and the accused person cannot claim it as a matter of right.

Bail as a matter of Right

If tried for bailable offence

Section 436 of CrPC states that “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”. This section covers all the aspects of a person accused of a bailable offence. Further, through amendment in section 436, CrPC it was obligated that the court or police officer release a person on his surety if he is indigent. In Rajender Singh Sethia v. State, the final decision in a bail-related matter, it was said, should be based on the circumstances and facts of each case. The discretion should not be subjective or vague; rather, it should be founded on well-thought-out concepts.

If the investigation is not completed within the specified time frame

According to Sec 57 of CrPC a person who has been arrested and detained in police custody and the investigation cannot be completed within 24 hours such person should be taken to the judicial magistrate who may authorize his detention but such detention shall not exceed 15 days in the whole. If additional detention is required for investigation, it should not exceed 90 days if the offence is punishable by death, life imprisonment, or a sentence of more than 10 years, and not more than 60 days for any other offence. If the individual is willing to furnish bail at the end of the 90-day or 60-day period, he will be released on bail. And bail becomes a matter of right.

No reasonable ground for believing the accused guilty of the non-bailable offence but sufficient ground for further inquiry

In these cases, the accused shall be released on bail under section 436. Bail becomes a matter of right since there lacks reasonable ground for holding the accused guilty though there may exist sufficient ground for further inquiry which could be done even after releasing the accused on bail.

After the conclusion of trial but before the judgement is delivered

If at any time before the judgement is delivered for a person accused of a non-bailable offence the court believes that the accused is not guilty it shall release the accused on bail.

Bail as a matter of Discretion

Sec 437 of CrPC uses the word may be released on bail which indicates that it is left to the discretion of the court to grant bail where the offence committed is non-bailable.

Bail is a matter of right only in cases of bailable offence and in the circumstances discussed above and it becomes a matter of discretion in non-bailable offences. However, this discretion has to be exercised judiciously and it depends upon various considerations:

i) discretion is always in inverse proportion to the gravity of the crime.

ii) Judicial officer has wider discretion to grant bail as compared to the police officer’s discretion.

iii) A high Court and Court of Session has wider discretion than that of other courts and judicial officers. The power to issue bail in a non-bailable offence must be exercised by certain rules and principles established by the code and judicial precedent.

While deciding on granting bail in non-bailable cases though there cannot be any hard and fast rules which a court should follow, however, the court can for guidance refer to the following circumstances:

  • The nature of accusation

  • The enormity of the charge

  • The danger of witnesses being tampered with

  • The severity of the punishment which the conviction will bring

  • The risk of accused of person absconding if released on bail

  • The interest of society

  • The gravity and nature of the situation in which crime was committed

  • The possibility of the accused committing more offences.

There are various other considerations than those above listed and these are by no way an exhaustive list. Though it is a well-established legal position that the issuance of bail in non-bailable offences is at the discretion of the judge and that the court concerned with bail must only be satisfied if the accused has a prima facie case against him.


It can be inferred that the essence of bail is that it serves as a security deposit by the convicted person, allowing him to be released on a short-term basis while requiring him to appear in court whenever the court requires it. If the convicted person's trial is still pending, the bail process takes place. This provision of bail could be seen as the best example which tries to ensure the liberty of the accused who is yet to be proved guilty.


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