• Legis Scriptor

Provisions of Bail under the Criminal Procedure Code

Authored by - Shreya Yadav

Keywords - Bail, Criminal Offense, Liberty, Cr.P.C, Fundamental Rights


The rise in criminal offenses in India is posing a problem for the quick disbursal of the cases or even in time. Yet another issue can be the overcrowded prisons which are becoming an issue in India. The concept of liberty and presumption of innocence are contradicting the nature, arresting, and restraining the person in prison. Therefore, the concept of bail is a way out in such situations. The concept of bail can be said to be started in 399 B.C. but the modern form can be said to be evolved through many constitutional developments in England and America. The term bail has been taken from the French verb “bailier” which means to ‘give or deliver’.


“Granting bail is the rule and jail is an exception” as stated by Justice V.R. Krishna Iyer in the case State of Rajasthan vs. Balchand[1].

Bail is an important principle to support the person's right to liberty and the principle of presumption of innocence. The need for the provisions of bail under the Criminal Procedure Code of India (hereinafter Cr.P.C.) was enshrined to conform with the fundamental rights provided in the Constitution of India under Part III and IV and international convention and treaties for which India is part. Wharton's Law Lexicon defines bail as: "To set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the person arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required so that he may be safely protected from prison to which if they have, if they fear his escape, etc, the legal power to deliver him'.

There is no particular definition for the term bail is given under Cr.P.C. rather defined bailable and non-bailable offenses under Section 2 (a) of Cr.P.C. The granting of bail is upon the discretion of the court there is no fixed rule, the judge can grant even in non-bailable cases. In the case Sanjay Chandra vs CBI[2], similar characteristics were laid down, that is grant or refusal of the bail is the discretion of the judge as different cases have different facts and circumstances, according to which the bail must be granted or refused.


The concept of bail is given under Section 436 to 450 of Cr.P.C. in which different kinds and conditions are mentioned. The bail can be granted by the judge of the Sessions Court and High Court, Police Officer and the Magistrate. Below mentioned are the types of bail under Cr.P.C:

Section 436 - This Section deals with the bailable offenses, it is mandatory and not on the discretion of the judge or the magistrate which means that the mere seriousness of the case can be no reason to not grant bail. The judge or magistrate here only has the choice between granting simple bail or bail with sureties but is obligated to grant the bail. The non-compliance with the requirements of bail can result in the refusal of granting the bail. The most common practice of granting bail is the way of demanding security with sureties.

Section 437 - This Section deals with the non-bailable offenses, this type of bail is generally granted at the discretion of the judge after reviewing the facts and circumstances of the case. If the judge believes that the case would not be affected by the release of the accused he may grant bail for non- bailable offenses. The circumstances under which bail may not be granted are:

1. When the case is of life imprisonment or death

2. Accused has been previously convicted for any offense

The discretion of court lies when the accused is below the age of 16 years, sick or infirm then looking into the circumstances, the judge may grant bail for non-bailable offenses.

Section 438 - This Section deals with the category of bail named anticipatory bail which means that bail is granted to a person who files before the court for the same in anticipation of being arrested. In simple terms, when a person is in fear of being arrested he may file before the court for anticipatory bail as in a recent case Bollywood actress Rhea Chakraborty did. The court may take into consideration:

  1. The significance of the accusation

  2. Past convictions

  3. The possibility of the person to escape

  4. It was included in 1973 after the recommendation by the 41st Law Commission Report given in 1969.

Section 439 - This deals with the interim bail, though not expressly said in the provision, it states that when a plea of anticipatory bail is in the process an interim bail may be provided by the High Court or Court of sessions. the person can be granted interim bail for the purpose of surrendering himself in a court where the case has been registered but he resides somewhere else. The High Court has the power to grant bail under Section 439 but it does not allow the power to order the arrest of a person.

Section 167(2) - This Section deals with the right to bail or bail on default, which means that when the magistrate grants, presented within 24 hours (Section 57 of Cr.P.C.), custody of accused which is for maximum of 60 days or 90 days for the investigation to be done. At the end of this period a default bail is granted to the accused if the investigation has not been completed in lieu of the constitutional rights such as Article 21.


The concept of bail has been debated from a very long time ago as an injustice being done by sometimes releasing the criminals but in the long run it is boon for the falsely accused person. A need for review of the bail procedures is strongly needed.

[1] 1977 AIR 2447 [2] LQ 2011 HC 1120


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2. Law commission of India. (1969). Amendments to Criminal Procedure Code. Retrieved from Law Commission of India Report 268:

3. Rizwi, Y. (n.d.). Academia. Retrieved from Bail Under Cr.P.C.:

4. Shodhganga. (n.d.). Introduction: concept of bail. Retrieved from

5. shodhganga. (n.d.). Law relating to the bail. Retrieved from

6. Sreenu, S. M. (n.d.). BailL, Anticipatory Bail, Mandatory Bail & Bail after conviction. Retrieved from district e-courts: