The jurisprudence of bail


    In News

    • Recently, the Supreme Court has reiterated that bail is the rule and jail is the exception. 

    Meaning of bail

    • Releasing a prisoner 
      • Bail connotes the process of procuring the release of an accused charged with certain offences by ensuring his future attendance in the court for trial and compelling him to remain within the jurisdiction of the court.
      • In simple words it is the security required by a court for the release of a prisoner who must appear at a future time.
    • The objective of arrest is to deliver justice by presenting the accused before the Court. 
      • However, if the same objective can be achieved without making any arrest then there is no need to violate his liberty. 
      • That’s why bail can be granted to the accused person for conditional release.

    Legal position of bail

    • Article 21 of Indian Constitution 
      • Article 21 of the Constitution of India guarantees the protection of life and personal liberty to all persons. 
      • It guarantees the fundamental right to live with human dignity and personal liberty, which in turn gives us the right to ask for bail when arrested by any law enforcement authority.
    • Section 438 of Code of Criminal Procedure in 1973
      • The provision of anticipatory bail under Section 438 was introduced in the Code of Criminal Procedure in 1973.
      • The term ‘Bail’ has not been defined under the Criminal Procedure Code, 1973. 
        • Only the term ‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a). 
      • It is based on the recommendation of the Law Commission of India, which in its 41st report recommended the incorporation of a provision of anticipatory bail.
    • Universal Declaration of Human Rights under Article 11
      • The Bail provision, especially anticipatory bail, is based on the legal principle of presumption of innocence which means that every person accused of any crime is considered innocent until proven guilty. 
      • This is a fundamental principle mentioned in the Universal Declaration of Human Rights under Article 11.

    Categories of bail

    • Bailable offences
      • According to Section 2(a) of CrPC bailable offence means an offence that is classified as bailable in the First Schedule of the Code, or which is classified as bailable under any other law.
      • An accused can claim bail as a matter of right if he is accused of committing a bailable offence.
      • The police officer or any other authority has no right to reject the bail if the accused is ready to furnish bail.
      • Under Section 436 of CrPC 1973, a person accused of a bailable offence at any time while under arrest without a warrant and at any stage of the proceedings has the right to be released on bail.
    • Non-bailable offences
      • A non-bailable offence is defined as any offence which is not a bailable offence. 
      • A person accused of a non-bailable offence cannot claim bail as a right.
      • A person accused of non-bailable offences can be granted bail provided the accused does not qualify the following conditions:
        • There are reasonable grounds to believe that he has committed an offence punishable with death penalty or life imprisonment.
        • That the accused has committed a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment of seven years or more or if the accused been convicted on two or more instances of a cognizable and non-bailable offence.

    Different types of bail

    • Regular bail
      • 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.
    • Interim bail
      • This is a direct order by the court to provide temporary and short term bail to the accused until his regular or anticipatory bail application is pending before the court. 
      • The Supreme Court noticed the misuse of interim bail by the accused in Rukmani Mahato vs. the State of Jharkhand.
    •  Anticipatory bail
      • This is a direct order of Sessions or High Court to provide pre-arrest bail to an accused of a crime. 
      • When the person has an apprehension of being arrested, the person can apply for anticipatory bail.

    Distinction between Bail and the anticipatory bail

    • Under section 437 of the code, it has been stated that a regular bail is available and granted to a person after the arrest when he is in the judicial or police custody,  however in the case of an anticipatory bail is available to a person before the arrest or if the person has reasonable apprehension of arrest. 

    Cancellation of bail

    • Under Section 437(5) of CrPC, the court which has granted bail can cancel it, if found necessary under certain conditions. 
    • As per Section 439(2), the Sessions Court, High Court, or Supreme Court can, suo moto, cancel the bail granted to the accused and transfer the accused to custody. 
    • As per Section 389(2), an appellate court can also cancel the bail of the accused and order the accused to be arrested and sent to custody. 

    Cases related to the provision of Bail

    • Digendra Sarkar
      • Under Section 438 of the CrPC, the application for anticipatory bail applied even before the First Information Report is registered. 
      • So, First Information Report cannot be a condition precedent to applying for anticipatory bail. 
    • Suresh Vasudeva vs. State
      • Section 438(1) applies only to non-bailable offences. 
    • Sushila Agarwal vs. State
      • The Supreme Court held that anticipatory bail should not be for a fixed period, but it is open to the court to limit the tenure of anticipatory bail if any special condition necessitates the same.
    • Gurbaksha Singh Sibbia and others vs.the State of Punjab – the Supreme Court opined :
      • There are no provisions in the CrPC regarding time boundness of granting pre – arrest anticipatory bail.
      • The concerned court has the discretion to impose conditions for grant of anticipatory bail including a limited period of protection etc., subject to considering any special circumstances required.


    • Safeguarding liberty: The objective behind enacting Section 438 is to safeguard the liberty of a person.
      • While Courts have time and again emphasised the need to uphold the liberty of individuals and protect them from arbitrary arrests, one needs to remember that anticipatory bails are not a matter of right like other types of bail.
    • The need for anticipatory bail arises mainly when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence.
      • Anticipatory bail is concerned with the liberty of a person and presumes their innocence.
    • Malimath Committee Report: The Malimath committee gave its observation regarding the provision of anticipatory bail. 
      • They stated that the provision of section 438 is often misused by the people. 
      • Such misuse of the provision is illegal.