Law of Bail

Law of Bail

Criminal Advocate in Chandigarh

Law of Bail

What is Bail?

In the case titled as Kamlapat vs State of West Bengal, the Hon’ble Supreme Court of India has defined Bail as: a technique which is evolved for effecting the synthesis of two basic concepts of human value, viz., the right of an accused to enjoy his personal freedom and the public’s interest on which a person’s release is conditioned on the surety to produce the accused person in the Court to stand the trial

Types of Offences:

Offences can be classified on the basis of “Cognizable offence”, and “Non-cognizable” offence. In brief the difference between these two is:

  • Cognizable offences: An offence, where a police offer can arrest without a warrant.
  • Non-cognizable offences: An offence, where a police officer can arrest only with a warrant.


  • A bailable offence is one, in which, bail is a matter of right,
  • Non bailable offence is one, in which granting of bail is discretion of the court.

Types of Bail:

  1. Anticipatory Bail: Under Indian criminal law, there is a provision for anticipatory bail under Section 438(1) of the Criminal Procedure Code. Law Commission of India in its 41st report recommended to incorporate this provision in procedure code. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. On filing anticipatory bail, the opposing party is notified about the bail application and the opposition can then contest the bail application in court (public prosecutor can also be used to do this).

Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. It is only issued by the Sessions Court and High Court.

  1. Regular Bail: When a person commits a cognizable and non-bailable offence the police takes him/her into custody. After the expiry of the period of police custody if any, the accused is sent to Jail. U/ss 437 and 439 Cr.P.C., such accused has a right to be released from custody. Regular bail, therefore means release of accused from custody to ensure his presence in the trial.

Discretion while granting the Bail:

The Hon’ble Supreme Court of India in the case titled as Rajender Singh Sethia vs State, held that personal liberty as guaranteed under the Constitution must be harmonized with considerations under ordinary law. In matters eating into the very vitals of the society, the issue is always resolved by reference to what is in the interest of society and what is against it. The ultimate decision in matters of bail is always taken on the circumstances and facts of each case. It is for this reason that the discretion is vested in courts in matters of bail and has always been considered a great trust. This discretion has to be exercised judicially with all the concern to the facts of a particular case and the circumstances

Furthermore, the Hon’ble Apex Court in case titled as Prahlad Singh Bhati vs. NCT, Delhi, had laid down principles on the basis of which such discretion has to be used:

  • While granting the bail, the Court has to keep in mind the nature of accusations,
  • the nature of evidence in support thereof,
  • the character and standing of the accused,
  • circumstances which are peculiar to the accused,
  • reasonable possibility of securing the accused’s presence at the trial, and similar other considerations.

“Discretion” of a court of justice means “sound discretion guided by law”. It must be governed by rule, not by humour. It must not be arbitrary, vague and fanciful. The Judge’s discretion must be exercised in accordance with established principles of law. The court in State v. Veerapandy stated that if a prima facie case has been made out by the prosecution and if there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail pending disposal of the case; unless extraordinary circumstances intervene favouring the accused.

Mandatory Release on Bail:

  • Where the offence is bailable. (S.436, Cr.P.C). 
  • Where the applicant has undergone half sentence as an under-trial and the offence is not punishable with death or life imprisonment (Section 436A, Cr.P.C).
  • Where the investigation is not completed and the police report is not filed within 60 or 90 days. (S.167(2)(proviso) (or a longer period as provided by the statute). 
  • Where trial before Magistrate is not concluded within 60 days (Section 437(6), Cr.P.C). 

Relevant Sections: 167(2) Cr.P.C, 436 Cr.P.C, 436a Cr.P.C., 437(6) Cr.P.C.

Computation of period for 167(2) Cr.P.C.

The Hon’ble Apex Court in case Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 held as:

Period after which accused becomes entitled to default bail is 90 days where:

  • Offence punishable with death and any lower sentence (eg: S. 302, 305, 396 IPC etc.)
  • Offence punishable with life imprisonment and any lower sentence (eg: S. 376, 376-D IPC etc.)
  • Offence punishable with a minimum sentence of 10 years (eg: S. 14(2), POCSO, S. 379B as amended in the State of Haryana, S. 19, 27A, 59 etc. in NDPS)

Period is 60 days period where – where sentence is 10 years or less (eg: S. 306, 384 IPC) 

Case Laws with respect to Default Bail and computation of period:

Gravity of Offence:

Gravity of offence, is not the sole consideration for grant or refusal of bail.


Often it is told by the Police officer to the court is that the accused is not co-operating. Now what is Co-operation in Investigation?

Co-operation in investigation remains a crucial consideration that weighs in the mind of the court while deciding the question of bail. What really is ‘co-operation’ though?

  1. It is settled law that the Court can draw an adverse inference against the accused but the Police cannot compel answers by custodial interrogation. It is not legally correct that custody of the accused is required by the Police merely because there is an allegation against them. ….

The custodial interrogation is a euphemism for torture. While considering the application for anticipatory bail, the Court has to keep all these facts in its mind, especially in the cases of commercial type disputes and of civil nature.

Merely because the accused does not confess as the police wants him to, it cannot be said that he is not co-operating with the investigation.

Accused not arrested during investigation:

  • DATARAM SINGH v. STATE OF UTTAR PRADESH AND ANR (2018) 3 SCC 22: If the accused was not arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses and the investigating officer did not find it necessary to arrest an accused person during investigations,a strong case should be made out for placing that person in judicial custody after a charge-sheet is filed.

Cancellation of Bail:

The Court which grants bail, can also withdraw the concession of bail, either suo moto, i.e. own its own, or on the Application from the Police/ Complainant/ any other aggrieved person. However, the Courts exercise their power of cancellation of bail with care and circumspection. Routinely, the Courts refuse to cancel bail, as it jeopardizes the personal liberty of the person. The Courts cancel bails only when they find on record a very cogent and overwhelming circumstances prevailing against the accused.

The S-439(2) of the Code of Criminal Procedure, deals with the issue of cancellation of bail, which reads as under:

The Code of Criminal Procedure, 1973- S-439(2)-A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

Grounds for cancellation of Bail:

  • Bail granted can be cancelled on the ground which has arisen after the bail was granted.:-It is generally presumed that at the time of hearing of the bail application, the prosecution has raised all possible grounds which could go against the accused in the matter of bail and, therefore, when once bail has been granted to the accused, the prosecution cannot have the bail cancelled on some circumstances which may have existed before the grant of bail.
  • Suppression of material facts and conversion of offence:-If in his bail application, accused does not disclose his involvement in other criminal cases, and/ or sections are altered/ added in the FIR after grant of bail/ anticipatory bail by the Courts.  
  • If investigating agency is able to demonstrate that accused persons have attempted to influence the witnesses or otherwise tried to thwart the course of justice in any manner.

Judgments on Cancellation of Bail:

Bail under NDPS Act

Section 37 of NDPS: It lays down a twin condition for grant of bail for offences under NDPS

In State of Kerala v Rajesh (SC, 2020) CRIMINAL APPEAL NO(S). 154­157   OF 2020, 24th January 2020  – the SC has recently upheld the highest threshold/test, and further strengthened it by holding:

  • There cannot be a “liberal” approach to bail  in NDPS cases.
  • The expression ‘reasonable grounds’ means something more than prima facie grounds.
  • It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.

The   reasonable   belief   contemplated   in   the   provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.

Statutes that expressly barred the concession of Anticipatory Bail

  • UAPA – Section 43D(4)
  • SC/ST (PREVENTION) ACT – Section 18A(2) [though the SC in Prathvi Raj Chouhan v UOI, 2020 SCC OnLine SC 159 has held that the bar would not apply when prima facie the SC/ST Act is not attracted to the case]
  • MCOCA – Section 21(3)

Concession of Bail to Juveniles:

Bail should be granted to every juvenile as a matter of right. Should be refused only on grounds mentioned in Section 12 of the Act.

Some considerable points for grant of Anticipatory Bail:

  • Nature & Gravity
  • Previous Antecedents
  • Possibility of Fleeing
  • Possibility of repetition of offence
  • Apprehension of Tampering of evidence
  • Available Evidence against the accused.
  • Frivolity in prosecution

Advocate, Anoop Verma, Punjab & Haryana High Court Chandigarh