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  • Writer's pictureLAWGIC STRATUM

Bail and its Kinds Under Code of Criminal Procedure, 1973- A Brief Note

Authors: Pasapala Syed Mustaq & N. Prathyusha


India is one of the developing and heading towards becominga developed country. India has its written constitution which prescribes the rights and duties of citizens and also lays down the procedures to follow by the three branches of the government i.e.; Executive, Legislature and the Judiciary. In India,there are procedural laws have existed with amendments. The said procedural Laws are Code of Criminal Procedure, 1973(here in after referred to as Crpc) which prescribed procedure to Investigate and punish the culprits or those who committed public wrong and the another is Code of Civil Procedure, 1908(hereinafter referred as CPC) which prescribed procedure to enforce contractual obligation or performance and also impose compensation and damages to the individual who committed private wrongs.

In this write-up, the authors mainly focus on Bail which is prescribed in the Code of Criminal Procedure, 1973.

Our Holy text i.e., Constitution of India has enshrined Article 21 which gives that citizens and non citizensthe Right to life and personal liberty. That is, NO PERSON SHALL BE DEPRIVED OF HIS LIFE AND PERSONAL LIBERTY EXPECT ACCORDING TO THE PROCEDURE ESTABLISHED BY LAW.

Every citizen of India has a fundamental right to freedom, which is guaranteed under Article 21 and Article 19. Any person who violates the law has to face certain consequences in which his or her freedom may be restricted. However, the significance of such restriction will be based on the type and nature of the offence that has been committed. Detaining the person without reasonable cause it will infringe his right under Article 21 and also it is said to be illegal. Every accused person has the right to be released on bail, by the court after taking into various factors such as the seriousness of the offence, public interest, the character of the evidence, apprehension of the witness be tampered with and othersimilar factors.

Bail and its meaning:

The word “Bail” became popular in the present day. The person who has the intention to kill someone will kill him/her with confidence that he will be released on bail. The person with audacity speaks out in the public that, I will get bail even if I murder. By that, the people get to know that bail means getting release from police custody. That is how the word “Bail” got fame in the public. The term Bail has not been defined in Crpc but by availing the authorised dictionary the word Bail can be denoted. According to Merriam Webster Dictionary, Bail is a temporary release of a prisoner in exchange for security giving for appearance in the later hearing[1] and also Collins Dictionary, Bail is a sum of money that an arrested person or someone else puts forward as a guarantee that the arrested person will attend their trial in Court[2].The Criminal procedure Code does not define the term Bail. It talks in detail about the Bail process. According to section 2(a) of Crpc, bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence.


There are three main categories of Bail i.e Bail in Bailable offences, Bail-in non-Bailable offences, Anticipatory Bail and Transit Bail.


Section 436 of Crpc[3] deals with provisions of Bail in Bailable offences. According to this Section, Bail is the right of the person who was treated as an accused by committinga bailable offence. The said person shouldn’t have committed Non Bailable offence is the condition precedent in this section. Also if the offence committed isbailable, it is the mandatory duty of the police officer and the court to release the accused.

According to Subsection (2) of section 436 of the code if the person who is accused of a bailable offence fails to comply with the conditions of the Bail bond then the Court can refuse the bail.Bail Bond means a bond issued by the accused to release him from the custody. But, after the Bail is granted the court of Magistrate has no power to order the arrest of such accused.

According to section 439(2)[4],Only the High court or the Court of sessions is empowered to order the arrest of such person who is released on Bail;High Court has inherent power to cancel bail in bailable offence and that power should be exercised in the interest of justice The power of High Court is given under section 438[5].

By furnishing a surety the accused person can be released on bail. And if the person is an indigent one, the police or the Court on executing a bail bond without sureties can release him on bail.


It is clear from Section 436 Crpc that, if any person commits an offence, which is Bailable, he can get bail. But the question here is what if the offence committed by him does not fall under the purview of a bailable offence. Shouldn’t he be released on Bail? In this case, it depends upon the discretion of the Court or the police officials. They can release the person who has been accused of committing a non-bailable offence. But there should not be any reasonable ground or apprehension that such a person who was arrested has committed a crime and is guilty of an offence punishable with death or imprisonment for life.

According to Section 437 of Crpc[6], the bare reading as follows:

When any person accused of or suspected of, the commission of any 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 other than the High Court or Court of Session, he may be released on bail, but such person will not be released

a) if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

b) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.

To grant bail in bailable offences, the court will consider many things such as the nature of the offence and its severity the character of the accused, the nature of the evidence collected, the chance of tampering with the evidence and the witness, the possibility of committing other crime and the interest of the public at large.


Anticipatory Bail is Bail, which is granted by the court in anticipation of an arrest. Any person, who has anticipation that he would be arrested shortly, can apply for this bail. Such a person, to whom this bail is granted, shall be released in case if he is arrested.

Section 438 of Crpc deals with this Anticipatory Bail. According to this section, the person can apply to the High Court or session court onlyif the offence is non-bailable. The power to grant such bail is completely vested with the High Court and the Sessions court. There must be a reason for the Court to believe that the person may be arrested shortly. Also, the Court will consider certain factors while granting this bail such as the nature of the accusation, the possibility to flee and other such relevant grounds. If the Court is not satisfied, it can reject the application.

According to section 438(2), the High Court or sessions Court can impose conditions while granting this bail application such as

(i) That the person shall make himself available for interrogation by a police officer as and when required

(ii) That the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any police officer;

(iii) That the person shall not leave India without the previous permission of the Court;

Misuse of Section 438; Malimath Committee Report

The Malimath committee gave its observation regarding the provision of anticipatory bail. The committee stated that people often misuse the provision of this section and such misuse is illegal. The committee suggested two conditions to retain the provision

  • The Court shall hear the public or the government prosecutor before granting the anticipatory bail

  • The Court having competent jurisdiction should hear the case concerning anticipatory bail



The term INTERIM BAIL is nowhere defined in Crpc. Supreme Court in the case LalKamlendraPratap Singh vs State of U.P. and Ors.[7] Defined that granted interim bail to Faruqui who was arrested on charges of outraging religious feelings under section 295 A of the Indian Penal code. The court stated that “Interim bail could be granted pending the disposal of the main bail application”. The reason behind this is that arrest and detention of an accused may cause irreparable loss to a person’s reputation.


The word transit bail is nowhere defined in the Code. It is a very new concept, which was evolved from judicial practice. It is one of the judge-made laws and therefore it is legally binding i.e it acts as a precedent.

Transit bail is bail that is sought against a transit remand order. So, to understand what transit bail is, one must know about transit remand order

A transit remand order is an order where the judicial Magistrate of one state permits the police officials of another state to arrest the person and put him in police custody for the sake of custody. So, in this case the person who is apprehending such arrest can apply for transit bail to avoid such arrest.

In other words, a person seeks bail in the apprehension of arrest from police officials of the state he resides in, but, in this transit bail, the person seeks the bail-in apprehension of arrest from police officials of another state. This type of bail is similar to anticipatory bail and therefore the procedure to apply for this bail is the same as that.


Bail-in Default

This is a bail, which is granted default due to non-compliance of investigation.

According to section 167 of the code[8], if the investigation is not completed within 24 hours, the judicial magistrate is empowered to authorize the custody of the accused and in such case, any person who is detained and is undergoing investigation can get bail;

  • After 90 days, if the investigation relates to an offence which is punishable with death or life imprisonment not less than ten years and

  • After 60 days, for any other offence

Bail after Conviction

If a convicted person files an appeal under Section 389(1) and (2), he can get bail from the appellant court.

The maximum period of Detention:

According to section 436-A of the code, the under-trail prisoner who has been detained for one half of the maximum sentence specified for that offence shall be released by the court on his bond with or without sureties. However, the offence for which the person is accused of committing should not be an offence punishable with death or life imprisonment.

Bail-in order to appear in the Higher court:

According to section 437 A of the code, the court trying the offence or the appellant court should require the accused to execute a bail bond with suretiesto appear in the Higher Court.

Judgments pertaining to Bail:

1. Bail to accused who not arrested during Investigation- Satender Kumar Antilvs CBI[9]

There are provisions in the code regarding the grant of bail to the accused arrested during the investigation. But, when it comes to the aspect of bail to the accused whowas not arrested during the investigation on the filing of the chargesheet, there are no specific provisions.

Recently, Supreme Court has issued guidelines on the aspect of the grant of bail to the accused not arrested during the investigation on the charge sheet being filed.

The court observed that if an accused in a non-bailable offence was not arrested during investigation and free for many years, and to direct his arrest after filing charges sheet, it would be contrary to the principles of the law of bail. Hence court felt that it be appropriate to issue some guidelines on this aspect.

There are two conditions that the bench has specified for these guidelines to apply. They are:

  • Accused not arrested during the investigation

  • Cooperated throughout the investigation including appearing before the investigation officer whenever called.

The guidelines are based on the category of the offences. The offences are put into A to D categories

Category A offences:

These are the offences, which are punishable with imprisonment of 7 years or less and are not falling in Category B and D. This category deals with both police and complaint cases

The following guidelines are issued regarding this category offences

a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer

b) If such an accused does not appear despite service of summons, then a Bailable Warrant for physical appearance may be issued.

c) NBW on failure to appear despite issuance of Bailable Warrant

Furthermore, NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of the accused, if such an application is moved onbehalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.

Here, the Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.

The Category B and D offences:

These are the offences of death, life imprisonment and imprisonment for more than 7 years. This Category includes the appearance of the accused in Court according to the process issued bail application to be decided on merits.

The category C:

These are the offences punishable under special Acts such as NDPS,UAPA etc,the guidelines for this are the same as Category B and D, but it has an additional condition of compliance of the provisions of Bail under NDPS, PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.

2. Vaman Narain Ghiya vs the State of Rajasthan[10]opined in the 8th part of the judgment that the law of bail as any other branch of law has its philosophy and occupies an important place in the administration of justice, the concept of bail emerges from the conflict between the police power strict the liability of a man who is alleged to have been committed a crime, and the presumption of innocence in favor of alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.

3.State of Rajasthan vsBalchand[11] the apex court laid down the principles for granting bail, the basic rule is to grant the bail. The said bail can be refused or denied if there are circumstances that if granted following which occur:

  • Fleeing from Justice

  • Thwarting the course of justice

  • Creating other troubles in the shape of repeating offences

  • Intimidating the witness should also consider the gravity of the offence committed.

4. Babu Singh vs State of U.P.[12] held that a second application to grant bail is maintainable if the first application is dismissed.

5. Raskilal vs Kishore[13], it was opined that the right to claim bail in bailable is absolute and indefeasible.

6.Sanjay Chandra vs CBI[14], the object of the bail is to secure the appearance of the accused person at his trial by a reasonable amount of bail. The object of bail is neither punitive nor preventative.

7.Aslam Babalal Desai vs State of Maharashtra[15]has relied on State (Delhi Admn.) vs Sanjay Gandhi[16] it was held that the tests to be applied by the court in granting bail is by reference to many considerations, such as the nature of the accusation, the evidence in support than the severity of punishment on conviction which would entail, the character, behavior, means and standing of the accused etc, and further it also stated that it is easier to reject a bail application in a non-bailable case than to cancel a bail once granted. Cancellation of bail necessarily involves the review decision already made and can, by and large, be permitted only, if, because of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.

8. Ram Avtar Shastri Tantrik vs State of U.P.[17], held that the Supreme court would not entertain a direct application for grant of bail, it shall be heard first in the High Court of respective states. In this case, the apex court directed to the High Court of Allahabad.

9. State of Gujarat vs Salimbhai Abdul Gaffar Shaikh[18], held that there is no provision to appeal against the order for refusing or granting bail under the Code of Criminal Procedure, 1973.

10.Jaswant Singh & Others vs State of U.P.[19] stated that Rejection on bail applications merely on the ground that applicants belonged to a particular community or state in which terrorist activity prevailing or that similar applications had been earlier rejected unjustified.

11. Mahesh Chandra vs State of U.P. & others[20], held that Jurisdiction of Court while deciding bail applications, it will not extend to decide Civil disputes as between the parties.

12.Vipin Kumar Dhirvs State of Punjab[21], the three-judge bench held that in what circumstance the superior Court can interfere in Bail matters, the gravity of offence, conduct of accused, the societal impact on undue indulgence by Court, where the investigations is at the threshold, are also amongst situations where the superior Court can interfere in order of bail to prevent the miscarriage of justice and to bolster the administration of criminal justice system and also in the cases of State of Orissa vs Mahimananda and Raj Kishor, Swain vs State of Orissa[22], the superior will not ordinarily interfere with the cases of granting or refusing bail to the accused but it( Superior Court) can interfere where it is apparent that the High Court has not acted judiciously and not followed basic principles governing grant of bail and further in Suresh Kumar Somabhai Rana vs Ashok Kumar Haraklal Mittal[23], for granting or refusing bail the Court has to function has to discharge judiciously but not arbitrary. The said cases where the Superior Court can interfere to set aside the bail which is granted by the respective High Courts.

13. Sanjay vs State of Gujarat[24]held that refusal to grant bail according to Section 437 and 439 of Crpcis not justified if it is refused merely that the appellant hailing from another state and may abscond from the jurisdiction of the Court granting bail. The Court while granting can impose conditions and grant Conditional bail.

14. Madanlal vs State of Punjab[25]the gist of this case is that the petitioner was arrested based on FIR and the chargesheet has not been filed against him by policebut still he was in the custody of Police. The petitioner prayed to grant him bail, the Court rejected it. The apex Court held it is not justified to reject the bail.

15. State vs Jaspal Singh Gill[26], the respondent in this prayed for the bail on the ground that, he went undergone cardiac operation and needed medical attention. The Court rejected the contention and held that the prison authorities will make arrangements whenever it is required. Hence, bail was cancelled.

16. State of Maharashtra vs Ramesh Taurani[27] this case is popularly known as the Gulshan Kumar Murder Case, in which several were arrested. The respondent has not mentioned in the remand applications presented by the investigation agency in respect of persons who are earlier arrested is not a valid or reasonable ground to grant bail to the respondent by the High Court.

17. Maulana Mohammad Amir Rishadi vs State of U.P. and another[28] 2012(2) Mh.L.J. (Cri) 412, held that the bail cannot be denied to the person, merely based on he has criminal antecedents.

18. Sumit vs State of U.P.[29], the accused should be grant bail even if there are other criminal cases pending against him.

19. ShahzadHasan Khan vsIshtiaq Khan and another[30], one judge has dismissed the bail application, and another judge has granted the bail, it is said to be contrary to judicial propriety.

20. Bal Chand Jain vs State of M.P.[31], the connotation “Anticipatory Bail” means bail in anticipation of arrest.

21. Bhadresh Bipin bhai Sheth vs State of Gujarat[32]was laid the guidelines or factors in while dealing with the anticipatory bail applications in Para No. 25.10 as follows:

1.The nature and the gravity of the accusation and the exact role of the accused must be properly comprehend before arrest is made.

2. The possibility of applicant flee from justice

3. The antencedents of the applicant, where the applicant undergone imprisonment or held guilty or convicted in any previous cases

4.The possibility of the accused to repeat the same offence or other offence if released.

5.The accusation where made against the applicant is to injure or humiliate the applicant.

6. Impact of the anticipatory bail in the cases where large number of people involved.

7.It also made a caution to the Court to evaluate the entire materials available and pertaining to the accused, if the case of common Intention (Section 34 of Indian Penal Code) and Common object (Section 149 of Indian Penal Code) the Court should be very cautious enough to evaluate the common knowledge.

8.The Court should also consider reasonable apprehension of tampering of witness or apprehension of threat to the complainant,etc.

22. Prem Shankar Prasad vs State of Bihar[33] the recent verdict delivered by the division bench of MR Shah and AS Bopanna JJ, held that the person who is absconder or proclaimed offender will not be entitle to relief of anticipatory bail.

23. Sunil Kallani vs State of Rajasthan[34], held that if the person is arrested already in a case, he will not be entitled for the relief of anticipatory bail.

24. SushilaAggarawal and others vs State of (NCT of Delhi) and another[35], this case verdict by the Constitution Bench and elucidates all about the Anticipatory Bail. Anticipatory bail can be granted and it shall remain in force till the conclusion of the trial, they need not be any fixed time to expire the bail granted.

25. State of Assam vs BrojenGogal(Dr.)[36], granting anticipatory bail under Section 438 of Crpc without hearing to the concerned state or to its Director General of Police as short DGP is held to be illegal.

26. R.K. Krishna Kumar vs State of Assam[37], anticipatory bail provisions will not be applicable to the bailable offence.

27. Samunder Singh vs State of Rajasthan[38], held that anticipatory should not be granted to a person against whom the investigation in the case of Dowry death is going on.

28. Raghuvir Saran Agarwal vs State of U.P.[39], while granting anticipatory bail in the dowry death case, the High Court should state the reasons if not it can be set aside.

29. Khemlo Sakharam Sawant vs State of Maharashtra[40], held that Bail is rule, jail is an exception.

30. Jivaji Jedeja vs State of Maharashtra[41], held that Grant or refuse of bail need not be by speaking order.

31. Jitendra Singh vs Mange Ram[42], Direct evidence is available on record against the accused or respondent, the bail should not be granted.


[1] [2] [3], Section 436 of Crpc [4], Section 439 of Crpc [5],arrest%2C%20he%20shall%20be%20release, Section 438 of Crpc [6], Section 437 of Crpc. [7]LalKamlendraPratap Singh vs State of U.P. and Ors, Criminal Appeal No.538 of 2009. [8], Section 167 of Crpc [9]Satender Kumar Antilvs CBI, LL 2021 SC 550 [10]VamanNarainGhiyavs State of Rajasthan, Criminal Appeal No. 406 of 2008. [11]State of Rajasthan vsBalchand (1977) 4 SCC 308) [12]Babu Singh vs State of U.P. (1978) 1 SCC 579 [13]Raskilalvs Kishore (2009) 4 SCC 446 [14]Sanjay Chandra vs CBI, (2012) 1 SCC 40 [15]AslamBabalal Desai vs State of Maharashtra (1992) 4 SCC 272 [16]State (Delhi Admn.) vs Sanjay Gandhi (1978) 2 SCC 411 [17]Ram AvtarShastriTantrikvs State of U.P.(1988) SCC (Cri) 49 [18]State of Gujarat vsSalimbhai Abdul GaffarShaikh (2003) 8 SCC 50 [19]Jaswant Singh & Others vs State of U.P., 1988 SCC (Cri) 913 [20]Mahesh Chandra vs State of U.P. & others(2006) 6 SCC 196 [21]Vipin Kumar Dhirvs State of Punjab(LL 2021 SC 537) [22]State of Orissa vsMahimananda and Raj Kishor Swain vs State of Orissa (2018) 10 SCC 516 [23]Suresh Kumar SomabhaiRanavs Ashok Kumar Haraklal Mittal (2009) 14 SCC 292 [24]Sanjay vs State of Gujarat (2002) 10 SCC 403 [25]Madanlalvs State of Punjab, AIR 1967 SC 1590. [26]State vsJaspal Singh Gill (1984) 3 SCC 555 [27]State of Maharashtravs Ramesh Taurani (1998) 1 SCC 41 [28]Maulana Mohammad Amir Rishadivs State of U.P. and another 2012(2) Mh.L.J. (Cri) 412 [29]Sumitvs State of U.P. 2010 Cri.L.J 1435(SC) [30]ShahzadHasan Khan vsIshtiaq Khan and another, AIR 1987 SC 1613. [31]Balchand Jain vs State of M.P. (1976) 4 SCC 572 [32]BhadreshBipinbhaiSheth vs State of Gujarat, (2016) 1 SCC 152 [33]Prem Shankar Prasad vs State of Bihar, LL 2021 SC 579 [34]Sunil Kallani vs State of Rajasthan, S.B. Criminal Misc.Bail Application No.9155/2019. [35]SushilaAggarawal and others vs State of (NCT of Delhi) and another(2020) 5 SCC 1, [36]State of Assam vsBrojenGogal(Dr.) (1998) 1 SCC 397 [37]R.K. Krishna Kumar vs State of Assam (1998) 1 SCC 474 [38]Samunder Singh vs State of Rajasthan, (1987) 1 SCC 466 [39]Raghuvir Saran Agarwalvs State of U.P., (1998) 8 SCC 617 [40]KhemloSakharamSawantvs State of Maharashtra, (2001) 2 BOMLR 875 [41]JivajiJedejavs State of Maharashtra, 1986 Supp SCC 556 [42]Jitendra Singh vs Mange Ram, (2005) 13 SCC 392

About the authors:

Pasapala Syed Mustaq, Advocate, V Addl.District Court, Allagadda who is passion to learn things pertinent to legal aspects, and interested in reading legal books, Articles, Newspapers. He is interested in Politics and would love to lead the team!!!.

He is a former Editor-in-chief of Lawgic Stratum.

I am N. Prathyusha, Advocate, Andra Pradesh. I would have to say I'm dedicated. I've dedicated my time and effort to achieve my goals in college. Once I'm clear on what the task is, I'm good at determining the best way to accomplish it and I strive to do the best I can. Besides these, I believe it's important to continue to grow and learn. I always look for opportunities that can help me learn and grow in my everyday. My greatest achievement was maintaining very strong Grades and Winning the Academic Prize First Award two years in a row.

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