How to Get Bail in India: Procedure, Types & Conditions

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September 13, 2023
By Advocate Chikirsha Mohanty

What is Bail?

In general terms, bail means the temporary release of a suspect in any criminal offence who is awaiting court trial after paying the bail bond. It becomes applicable after arrest and becomes effective from the moment of the arrest. An offence is any act or omission made punishable by law for the time being in force. When a suspect is arrested, his statement is taken on record and personal information such as his name, birthplace, present residential address, date of birth, profession, address of the family, mobile number, and charges filed against him are noted. The police officer may also review the past criminal record if any in the police station and ask for his fingerprints to file a case against the accused.

Consult: Top Criminal Lawyers in India 

Bail can be of two types -

  1. Regular bail - applied under Section 437 and Section 439 of the Code of Criminal Procedure, 1973.  Regular bail is granted to a person who is already in police custody for an offence or when there are allegations against him of committing the same.

  2. Anticipatory bail - applied under Section 438 of the Code of Criminal Procedure, 1973.  Anticipatory bail is applied in a condition where there is fear of arrest of the person by the police.

  3. Interim bail - It is provided before the regular or anticipatory bail procedure. This is because granting of bail by the High Court or Court of Sessions requires documents that are to be sent by lower courts which may take time. For this time period, interim bail can be provided. It can also be extended if it expires. 

  4. Default bail -The provision for "Default Bail" is described in Section 167 of the Code of Criminal Procedure (CrPC). This clause states that a person who has been arrested and whose investigation cannot be finished in 24 hours shall appear before a magistrate. This significant stage in the legal procedure makes sure that a person's rights are safeguarded immediately. The principle of Default Bail can be summed up in one sentence: the accused is entitled to default bail if the police or investigating agency fails to submit a chargesheet or complaint within the allotted time. This section ensures that there is no wrongful imprisonment of people during lengthy investigations. The accused must prove that the necessary 60 or 90 days (depending on the type of offence) have passed since arrest without a chargesheet or complaint being filed to get default bail. In such circumstances, the Court must grant default bail. The key idea behind this is to follow the motto of justice delayed is justice denied.

  5. Medical Bail-It is a specialised type of bail awarded only on medical grounds is known as medical bail. It is mostly taken into account when the person's medical condition needs rapid medical attention or specialised treatment. In contrast to regular bail, which frequently entails a thorough evaluation of elements including the suspect's risk of fleeing and the gravity of the crime, medical bail puts the person's health first. The Courts normally do not examine the case's merits or determine whether the standard bail requirements have been met when a request for medical bail is made. Instead, the individual's medical needs are the primary concern. This approach emphasises the value of giving those who are being held in custody prompt medical attention as well as the humanitarian function of the judicial system.

Legal Status of Bail

The Code of Criminal Procedure (CrPC) establishes the constitutional validity of bail in India. If someone is imprisoned for a bailable offence, their right to bail is established by Section 436 CrPC. In certain situations, bail must be granted per the section's specified procedures. The decision to grant or refuse bail, however, is left to the court's discretion when a person is detained based on a crime for which there is no possibility of bail after hearing arguments on both sides.
When granting bail, judges evaluate several factors, including the gravity of the offence, the likelihood that the accused may flee if released on bail, and the accused's reputation, social standing, and economic standing, among others.
Statutory bail (Default Bail)
According to section 167(2), when the police do not complete their investigation of a person in judicial custody within a specified period, the offender gets the right to bail. The Supreme Court ruled in Bikramjit Singh v. State of Punjab in 2020 that default bail is a constitutional right regardless of the nature of the offence. It is also known as default bail.
The day the accused is taken into custody marks the start of the countdown for submitting the charge sheet or report. After concluding the required investigation of an offence, a police officer is required by Section 173 of the CrPC to submit the same.
Provision for statutory bail
Section 167(2)(a) talks about statutory bail and it states that as long as the investigation relates to a crime punishable by death, life in prison, or a term of more than ten years, the Magistrate may grant the accused person's detention outside of police custody for a maximum of 15 days, but no longer than 90 days. The detention period for other types of investigation may last up to 60 days. However, the accused is eligible for release on bail if the inquiry isn't finished in these 90 or 60 days. Nevertheless, if it thinks it necessary, the court has the power to set restrictions while releasing someone on bail.
Where statutory bail shall lie
Section 190 of the Criminal Procedure Code states that only the Magistrates of the First Class and Magistrates of the Second Class may hear certain offences with particular permission. Whenever a complaint, police report, or suo moto action is brought, the lower courts are required to take notice of the alleged crime. These Magistrates have the power to remand the accused to either police or judicial custody during the investigation after taking cognizance of the offence. It's vital to remember, though, that Section 167 (2)(a) only gives these subordinate courts the authority to award default bail. They must transfer the case to the Court of Sessions for further proceedings after they have taken charge of it.
When the accused can use his right to statutory bail
If the inquiry lasts longer than 24 hours, the police are required to bring the accused before a magistrate in case of an arrest without a warrant. Aside from that, they must finish the inquiry quickly. Apart from child rape cases, which are covered by Section 173(1A) of the CrPC, there is no set deadline for concluding the investigation. However, Section 167(2)(a) of the CrPC specifies that if the investigation isn't completed within 90 or 60 days (depending on the circumstances), the accused person may be released on bail if they apply for it.
There are certain circumstances where default bail cannot be denied, they are- 

  1. The accused cannot be denied this right even if the investigation report is delivered after 60 or 90 days but on the same day that they apply for default bail. Once a right has been recognised, it cannot be taken away by the submission of the investigative report.

  2. They don't need to apply; a simple stated request will suffice if the accused has the right to default bail but does not request it.

The accused loses their right to default bail if they legally request it, but it is denied, and the charge sheet is finished while their appeal is ongoing in a higher court. This is so because the matter is still being heard by the higher court after the appeal.

Anticipatory bail
In Indian criminal law, anticipatory bail was first introduced in Section 438 of the Criminal Procedure Code of 1973. The Law Commission of India's 41st Report explained the concept behind this regulation. It highlighted the necessity of including a clause in the Code of Criminal Procedure that would permit the High Court and the Court of Sessions to give "anticipatory bail."
An individual may request bail before being detained on suspicion of committing a crime for which there is no provision for bail under Section 438. The main goal of adding this Section was to guarantee that no one would be held in custody before and until their guilt in the claimed offence was established. 

Anticipatory bail under the CrPC
A person may apply to the High Court or the Court of Session for relief under Section 438 of the Criminal Procedure Code if they have a good-faith belief that they may be detained on suspicion of committing a crime for which bail is not an option. If the court determines that the grounds are sufficient, it grants the person anticipatory bail.
The criteria that the court takes into account before granting anticipatory bail are listed in Section 438(1A) of the Criminal Procedure (Amendment) Act, 2005. These elements consist of:

  1. The nature and seriousness of the offence: The applicant's accusation is judged by the court for its seriousness and gravity. This evaluation assists in establishing whether anticipatory bail is required.

  2. Criminal History of Applicant: The court looks into the applicant's background, particularly to see if they have ever been convicted of a crime that could result in jail time. The court is informed by this information concerning the applicant's prior legal history.

  3. Risk of Fleeing: If anticipatory bail is granted, the court determines whether there is a possible risk that the applicant may try to escape legal action. In simple words, the chance of a person running away is taken into consideration

  4. Malicious Intent: The court has two choices if it believes that the applicant was falsely accused to harm or humiliate them by having them arrested. It can issue a preliminary order granting anticipatory bail or outright deny the application. This discusses circumstances in which accusations might be made to damage the applicant's reputation.

Interim bail (Temporary Bail)
Interim bail does not have a specific section, it is a temporary release from custody ordered by the court during a judicial proceeding or until a judgment is made regarding an application for anticipatory bail or regular bail. Based on the unique facts of the case, the court issues temporary bail. If needed, interim bail may be kept out longer. It's crucial to remember that the accused individual risk losing their freedom, being imprisoned, or having a warrant issued against them if they don't follow the court's guidelines for confirming or extending the interim bail. 
It's important to differentiate between interim bail and anticipatory bail. When there is a threat of arrest, anticipatory bail is often issued while the bail application is still ongoing. Interim bail, on the other hand, is a short-term freedom given while a case is in court and before a bail judgment is issued.
Interim bail – court's inherent power
The court usually sets a hearing for a standard bail application a few days after the applicant submits it. The court examines the case diary at this time after receiving it from the police.  It implies that the applicant might have to stay in prison during this period. Even if the request for bail is ultimately approved, the applicant's reputation in society may be severely damaged. Reputation is a precious asset and is protected by Article 21 of the Constitution as a fundamental right.
Therefore, it can be assumed that the power to set bail includes the inherent capacity of the relevant court to offer temporary relief to a person until the final determination of their bail application. Although the decision to issue interim bail ultimately rests with the court, the option is available to protect a person's reputation and their rights throughout the legal process.

Essentials/ characteristics of interim bail

  1. Interim bail refers to a brief or temporary release.

  2. It is granted while a court case involving an application for ordinary or anticipatory bail is ongoing.

  3. If regular or anticipatory bail is not approved after the interim bail period has expired, an arrest without a warrant may take place.

  4. There is no set process for cancelling interim bail; instead, it is usually up to the court's discretion, depending on the specifics of the case.

General grounds for granting interim bail
The Hon'ble Delhi High Court stated the following criteria for granting temporary bail in the matter of Parminder Singh and Ors. v. the State of Punjab (2001).

  1. When there is no chance, the defendant will flee.

  2. When the possibility of the defendant tampering with the evidence is remote.

  3. When the use of restrained interrogation is not justified.

  4. When a new date needs to be set for the anticipatory bail hearing.

In circumstances where specific instructions have been issued by the High Court for granting interim bail, Sessions Judges and Additional Sessions Judges must employ caution while releasing the accused. Sessions Judges and Additional Sessions Judges in such cases should expressly indicate in their decisions that the accused people should be swiftly freed and not be detained only to verify sureties.

Presumption of Innocence

The presumption of innocence, which accords the accused the benefit of the doubt regarding their involvement in the crime, is one of the important factors to take into account.
Bail decisions are dependent on several variables, including the need for an investigation into the offence, the seriousness of the crime committed, and the presumption of innocence.

What is the Bail procedure or how to get Bail in India?

When a person is arrested, he is taken to the police station to file the case. The police station where the suspect is taken is the one that exercises jurisdiction over the area where the suspect resides. 
In order to get bail , the following procedure must be followed:

  1. First, the accused person or their advocate must file a bail application in the court having jurisdiction over the matter. The bail application should state the reasons why the accused person should be granted bail and the grounds on which the bail is being sought.

  2. The bail application should be accompanied by an affidavit of the accused person, stating the facts of the case and the reasons why bail should be granted.

  3. The accused person or their advocate should also serve a copy of the bail application on the public prosecutor, who represents the State in the case.

  4. The court will then hear the arguments of both the accused person and the public prosecutor and examine any evidence presented before it.

  5. If the court is satisfied that there are no reasonable grounds to believe that the accused person has committed the offence and that they are not likely to abscond or interfere with the investigation, the court may grant bail.

  6. If the court grants bail, it will set out the conditions on which the bail is granted, such as providing a surety or a bond, surrendering the passport, or appearing before the police station regularly.

  7. The bail amount that the accused has to deposit is also based on the discretion of the court. However, in criminal cases with lower gravity, a standard amount is set by convention and practice which needs to be deposited for awarding the bail.

It is important to note that the procedure for applying for bail may vary depending on the specific court and the type of offence - bailable or non-bailable. You must take the help of a criminal lawyer for your bail matter.

Posting of bail

Cash Bail
The accused is required to pay the full bail amount, as determined by the court, in cash while posting this kind of bond. The court will occasionally accept payments made by cheque or credit card.
Surety bond
The principal (the person requesting bail), the obligee (the party obtaining protection from the bond, usually the court), and the surety (the guarantor who secures the principal's compliance with responsibilities to the obligee) are the three parties to a surety bond. This enables them to pay a smaller upfront portion of the entire bail sum.

This obligation is assumed by the bail bondsman, who typically has the backing of an insurance provider. Bail bondsmen normally charge a fee, which is typically in the region of 5-10% of the bail amount, because they take on the risk.
To safeguard the funds in case they are subsequently required, the accused may also be required to offer collateral or surety, such as their home or other property. 

The offender is not legally booked when they are "released on citation" or "cited-out." Instead, the accused is given a citation by the police, which imposes a court appearance requirement on them. This  is done to 

  1. Efficiency: Since law enforcement officers do not have to go through the formal booking process, which might take time, this saves them time. 

  2. Streamlined procedure: The procedure is easier and quicker for both law enforcement and the accused when a ticket is issued as opposed to a full arrest and booking.

  3. The citation serves as a formal reminder for the accused to show up in court when necessary. A failure to appear may have legal repercussions.

Release on Own Personal Recognizance
People may be freed on their recognisance, without posting bail, in instances of a minor nature or if the accused has a small role. However, the judge must take into account two important factors: the possibility of escape and any harm the accused might pose to society. The accused must show up in court at predetermined intervals to ensure their participation in the legal process.
Property bond
A property bond is a type of bail that enables a person who has been charged with a crime to be temporarily released from custody pending their trial. The accused may submit their property to the court as security rather than posting financial bail upfront. This means that if someone is charged with a crime, they have the opportunity to buy their freedom using the value of their home or other valuables.
Property bonds give people the chance to be released from jail after being arrested on charges even if they are unable to make substantial monetary instalments for their release. If the defendant fails to show up for court, the court has the power to reassert its jurisdiction over the property offered as collateral. In such a case, the court may order the forfeiture of all ownership rights or the seizure of assets instead of cash bail.
Property bonds are more frequently utilised in situations involving serious crimes, such as felonies, and less frequently in cases involving infractions like traffic infractions.

Who can give Bail in case of a bailable offence?

In order to get bail in a bailable offence, the suspect has to submit Form- 45 given in the Second Schedule to the court in which his case is being heard. For bailable offences, bail can be granted by the police officer in charge of the police station where the accused person is detained. The accused person can apply for bail at the police station, and the police officer has the authority to grant bail on reasonable grounds, such as ensuring that the accused person will appear in court for trial and not abscond.

If the police officer refuses to grant bail, the accused person can apply for bail before the court having jurisdiction over the matter. The court can grant bail after considering various factors, such as the nature of the offence, the likelihood of the accused person absconding, and the possibility of the accused person tampering with evidence or influencing witnesses.

It is important to note that in bailable offences, the accused person has a right to be released on bail, and the police officer or court should not unreasonably refuse to grant bail. 

Related Post: What is Bailable and Non-Bailable Offence  in India?

Who can give Bail in case of a non-bailable offence?

When the suspect is accused of committing a non-bailable offence, he has to submit the same form as above before the Court in which his case is being heard, but, granting of bail is at the discretion of the court only. For non-bailable offences, bail can be granted by a court only. The accused person can apply for bail before the court having jurisdiction over the matter.

The court can grant bail after considering various factors, such as the nature of the offence, the evidence against the accused person, the likelihood of the accused person absconding, and the possibility of the accused person tampering with evidence or influencing witnesses. If the court is satisfied that there are no reasonable grounds to believe that the accused person has committed the offence and that they are not likely to abscond or interfere with the investigation, the court may grant bail. However, if the court believes that there are reasonable grounds to believe that the accused person has committed the offence and that they are likely to abscond or interfere with the investigation, the court may refuse to grant bail.

It is important to note that the grant of bail in non-bailable offences is not automatic, and the accused person must prove to the court that they are entitled to bail. In some cases, the accused person may have to provide a surety or a bond to ensure that they will comply with the conditions of the bail.

Related Post: How to File an FIR 


How to file a Bail Application?

When a person has been convicted for an alleged crime, he/she can apply for bail. In case of a bailable offence, as has been stated above, the accused will have to file an application as Form - 45 provided in the second schedule. This application will be filed with the help of your lawyer in the court where the case proceedings are to be heard. The court will approve the bail only if it thinks fit to do so. Without an Application for Bail, it is not possible to get Bail. When an individual is already convicted and applies for an appeal in the higher court, he can apply for bail during this time. 

What happens in a hearing for Bail?

The judge hears all the reasons to grant bail and on this basis decides whether bail should be granted or not. Evidence and facts for seeking bail are presented before the Court. Before granting or rejecting bail, the Court considers certain factors like the character of the accused, the nature of the crime, the employment and financial condition of the accused, whether the accused has a history of convictions, etc. When Bail is granted, the Court may also impose certain conditions. 

What is Jamin in Court?

The term 'Jamin' refers to 'bail bond' or 'surety bond.' When a person is granted bail by the court, they may be required to furnish a bail bond or surety bond as a condition of their bail. This bond is a legal agreement between the accused person, their surety (a person who agrees to be responsible for the accused person's attendance in court), and the court.

The bail bond or surety bond serves as a guarantee that the accused person will attend court for all hearings and comply with the conditions of their bail. If the accused person fails to attend court or violates the conditions of their bail, the bond may be forfeited, and the accused person and their surety may be liable to pay the amount specified in the bond.

The amount of the bail bond or surety bond may vary depending on the specific case and the discretion of the court. The accused person or their surety may be required to provide property or cash as security for the bond, and the property or cash may be forfeited if the accused person fails to comply with the conditions of their bail.

It is important to note that the concept of Jamin or bail bond is an important part of the Indian legal system and plays a crucial role in ensuring that accused persons attend court and that the administration of justice is not obstructed.

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What are the types of offences and what is the scope of Bail in them?

Bailable Offence
In the case of a bailable offence, a grant of bail is a right available to the accused. It may be either given by a police officer who is having custody of the accused or by the court under whose jurisdiction the offence falls. The accused may be released on bail, on executing a “bail bond", with or without furnishing sureties. The "Bail Bond" may consist of certain terms and conditions, for instance:
The accused cannot leave the territorial jurisdiction of the state without the permission of the court or the police officer. The Accused shall give his presence before the police officer every time he is required to do so. The Accused cannot tamper with the evidence whatsoever, considered by the police in the investigation. Moreover, the court also has the power to refuse bail to an accused person even if the offence is bailable, where the person granted bail fails to comply with the conditions of the bail bond.

Examples of Bailable Offence:

  • Participating in an Unlawful Assembly.

  • Participating in riots and armed with a deadly weapon.

  • When a public servant disobeys a direction of the law to cause injury to another person.

  • If a person wears a Garb or carries a token used by a public servant with a fraudulent intention.

  • If a person is found bribing during election campaigns.

  • If a person is found to give false statements in connection with elections.

  • If a public servant refuses to take an oath when he is duly required to take one.

  • If a person obstructs a public servant in the discharge of his public functions.

  • If a person gives or fabricates false evidence in any kind of judicial proceedings.

  • If a vendor/ seller is selling any food or drink as food and drink, knowing the same to be poisonous.

  • If any person causes disturbance/ nuisance in a peaceful assembly engaged in religious worship.

Non Bailable Offence
A non-bailable offence is a crime in which the grant of Bail is not a matter of right but, the accused has to seek the permission of the court, and upon the discretion of the court based on the facts, bail is granted.
However, the court may generally refuse the Bail, if the "Bail Bond" has not been duly executed, or if the offence committed is of a grave nature, which imposes death punishment or life imprisonment, such as murder, rape, etc. or in cases where the accused has attempted to abscond, prevent his arrest by hiding and also, when his credentials are doubtful.
The application for bail shall be filed before the Magistrate, who is conducting the trial. The application after being filed is usually listed the next day. On such day, the application will be heard, and the police shall also present the accused in court. The magistrate may pass such orders, as he thinks fit.

Examples of Non-Bailable Offence:

  • Committing or even attempting to murder under Sections 302 and 307 of the Indian Penal Code.

  • When a person commits or attempts to commit rape defined under Section 376 of the Indian Penal Code.

  • In cases of dowry death under Section 304B of the Indian Penal Code.

  • When a person voluntarily causes grievous hurt defined under Section 326 of the Indian Penal Code.

  • When a person or persons kidnap another individual defined under Section 363 of the Indian Penal Code. 

    Related Post: What is Bailable and Non-Bailable Offence

When can Bail be granted?

The court exercises discretion and weighs a number of important considerations when deciding whether to grant release in situations involving offences that are not subject to bail. These elements consist of:

  1. Gravity of the Offence: The judge determines how serious the offence that was committed was. This assessment takes into account the seriousness of the offence and the possible punishments, which may include the death penalty or life in prison.

  2. Nature of the Charge: The charge's nature is taken into account. This entails determining the seriousness, veracity, and potential frivolity of the claims. The court assesses the quality of the proof and the veracity of the charges.

Several factors can be taken into consideration when setting bail in cases of non-bailable offences:

  1. Medical Grounds: The court may grant bail on medical grounds when an individual needs specialised treatment that is not provided in a correctional setting due to a medical condition.

  2. Lack of Evidence: The court may grant bail if the prosecution fails to provide enough evidence to prove the accused's guilt.

  3. Trial Delayed Significantly: If the accused has been detained for a long amount of time while awaiting trial, bail may be granted.

  4. Basis of Parity: When one co-accused has already been released on bail, the court may release the remaining co-accused parties on bail based on parity.

It is imperative to carefully weigh potential punishments and the anticipated length of jail. It is extremely difficult for the accused to get a pre-trial release because severe sentences may, in any situation, result in the refusal of bail. Before setting bail in situations involving non-bailable offences, courts and law enforcement officials must carefully consider these criteria.

Juvenile or Old Age

The court's decision to issue bail is always subject to its discretion and depends on the particular facts and circumstances of each case, It is imperative to stress.
Depending on the particulars of the case, a court in India may choose to reject bail for a variety of reasons. Below are some situations when bail can be denied

When can Bail be denied?

  • Bail cannot be denied unless the offence charged is of the highest magnitude and the punishment for committing it is passed by laws of extreme gravity.

  • Bail can be denied if there is a chance of the applicant obstructing the witnesses for the prosecution or otherwise polluting the process of justice.

  • Bail can be denied if the record of the accused who is applying for bail is a particularly bad record which suggests that he is likely to commit another serious offence while on bail.

  • Bail can be denied if the course of justice is prevented by the person who seeks bail for the time being.

  • Bail can be denied to an accused if he has been previously convicted of an offence punishable with at least 7 years imprisonment, life imprisonment, and the death penalty and/ or has been previously convicted on 2 or more occasions in cognizable offences.

  • If the court believes that the accused is likely to flee the country or evade trial, the court may reject bail.

  • If the accused is not cooperating with the investigation or is likely to destroy evidence, the court may reject bail.

  • If the grant of bail is against the public interest, the court may reject bail.

  • If the accused is already out on bail in another case and has committed a similar offence, the court may reject bail.

  • Bail can be denied to an accused if he has been previously convicted of an offence punishable with at least 7 years imprisonment, life imprisonment, and the death penalty and/ or has been previously convicted on 2 or more occasions in cognizable offences.

Authorities empowered under Section 437 CrPC to grant bail

Criminal Procedure Code (CrPC) Section 437 gives judges the discretion to issue bail to people who have been charged with or are under suspicion of committing crimes for whom bail is not an option. This clause gives judges and the police officer in charge of the police station the power to decide whether to grant the accused bail. It outlines the rights of an accused who requests bail through a court, and Section 437(1) identifies a particular class of police officers who are authorised to grant bail to such people.

Power of High Court and Sessions Court under Section 439 CrPC

The High Court and Sessions Court have extensive authority to grant bail under Section 439 of the Criminal Procedure Code (CrPC), 1973. These courts provide an opportunity for the accused to be released on bail, even if they are facing serious allegations that could result in the death penalty or life in prison. These courts have the power to review and, in some cases, reverse a Magistrate's decision to reject bail.
According to Section 439, the High Court or Sessions Court may issue bail if they have cause to believe that the defendant won't flee or commit new offences after being released from detention. They also take into account things like the strength of the prosecution's case and the probable severity of the penalty in the event of a conviction. 
Under this clause, the Court may also address appeals of its bail determinations and issue the necessary orders. This clause gives higher courts the authority to decide on bail issues carefully and fairly.

Scope of Section 439 CrPC

Concurrent jurisdiction states that two or more courts may hold hearings and render judgements on the same case concurrently. When dealing with crimes covered by Section 439 of the Code of Criminal Procedure (CrPC), this idea is pertinent in the Indian legal system. Both High Courts and Sessions Courts have the autonomous authority to order bail for criminal offences under Section 439.
An accused person may choose to request bail in such cases at either the High Court or the Sessions Court, but not both at once. If a bail application is denied by one court, it cannot be resubmitted with identical charges and circumstances to the other court.
On the basis of the initial court selection, there are variances, though:
The accused cannot submit a similar argument in the Sessions Court if their initial application for bail under Section 439 CrPC is denied by the High Court. However, the accused may still submit a new application to the High Court if the Sessions Court rejects the application.
As a result, persons involved in particular criminal cases have many opportunities to request bail from various courts under concurrent jurisdiction, significantly improving their chances of success if they are properly prepared.

Special Powers of the High Court authorities concerning the Supreme Court of India have construed the scope and amplitude of the provisions dealing with when the bail may be given in a non-bailable offence and the special powers of the High Court or Court of Session regarding Bail as specified under CrPC, 1973.

Even when the High Court or Court of Session uses their special powers under the CrPC to issue bail, they must do so subject to the requirement set forth for the grant of bail in cases of non-bailable offences. 


Consult: Top Criminal Lawyers in India

What happens after Bail is granted?

After bail is granted, the accused person is released from custody on certain conditions set by the court. These conditions may include surrendering their passport, appearing before the police station regularly, refraining from contacting witnesses or victims, etc. If the bail is granted by a lower court, the accused person may have to furnish a personal bond or surety to ensure that they will comply with the conditions set by the court. If the bail is granted by a higher court, the accused person may not have to furnish a bond or surety. Once the accused person is released on bail, they must ensure that they comply with the conditions set by the court. Failure to comply with these conditions may result in the bail being revoked, and the accused person being taken back into custody.

It is important to note that the grant of bail does not mean that the charges against the accused person are dropped or that they have been acquitted of the charges. The trial will still proceed, and the accused person will be required to attend court for further hearings until the trial is concluded.

Cancellation of Bail

The Criminal Procedure Code's provisions 437(5) and 439(2) give judges the power to revoke bail. The court has the authority to revoke bail at any time, even after it has been granted, thanks to this ability. In certain situations, such as when the accused has disregarded the terms of their release or when new information indicates that they pose a greater risk to society, bail might be revoked. In such circumstances, the court can rule that it is in the interests of justice to send the suspect back to where they were originally detained, cancelling their bail and giving the police the required instructions.
The judge examines all pertinent evidence pertaining to potential violations when deciding whether to revoke bail, but she also takes other aspects into account, such as complaints made by the accusers or information provided by the investigating authorities about the accused's involvement in criminal activity. The Indian Constitution's Article 21 demands a fair trial process, including taking immediate preventive action in urgent circumstances when considered necessary. This includes the judicial process of bail cancellation. Judges have an important role in upholding justice in a variety of circumstances, thus it is essential to accept their judgements in these cases.


The Supreme Court of India's 1980 ruling in the case of Gurubaksh Singh Sibia v. State of Punjab established the idea of anticipatory bail across the nation. This important case challenged core ideas about individual freedom and the rule of law.
 A social worker and member of the Punjab Legislative Assembly named Gurubaksh Singh Sibia was apprehended and arrested in accordance with the 1975 Terrorist Affected Areas (Special Courts) Act.  The Supreme Court made it clear that anticipatory bail may be granted under Sections 438-439A of the CrPC even when the accused is charged with crimes that are not subject to bail. The court emphasised that anticipatory bail guarantees that justice is done when it is due rather than giving the accused any advantages or protections.
The Supreme Court emphasised that such an order for anticipatory bail would protect fundamental rights, including the right to life and liberty, by preventing the abuse of special provisions like the TADA or POTA that deal with the prevention of terrorism. Regarding the granting of anticipatory bail, this case established a key legal precedent in India, opening the door for subsequent legal advancements in situations like this one.

Judicial decision on bail for Convicts of Non-bailable offence

The Supreme Court's ruling on bail for those convicted of crimes that are not subject to bail on September 6, 2005, is a good thing. This ruling allows life prisoners who have served at least five years in prison, including three years after their conviction, to be released on bail while their appeals are being considered. If they apply, even criminals given a court martial sentence may make use of this provision. The threshold is lowered to four years for ladies and juveniles, with at least two of those years occurring after conviction. It's crucial to remember that this rule does not apply if a specific legislation expressly forbids the granting of bail.
The Supreme Court's ruling offers much-needed relief to those charged with crimes that are not eligible for bail under our legal system. It presents a chance for those serving lengthy prison terms to reclaim their freedom and work towards reconstructing their life after being freed, possibly with the help of artificial intelligence technologies like visual inspections or facial recognition algorithms. Additionally, this ruling represents a move away from a strict prohibition on bail and towards a more flexible and context-based approach, which can aid in reducing inequalities in the criminal justice system.

Judicial discretion and its requirements

In circumstances involving bail, the idea of judicial discretion is particularly important. However, the specific regulations that apply to each situation place limitations on this authority. It is governed by well-established legal rules, such as those provided by higher courts, which specify how elements like public safety and individual liberties must be taken into account when determining bail amounts. To increase transparency and the efficacy of the legal system, judges who exercise this discretion must also present a concise and convincing justification for their decisions.
The ability to give bail in criminal proceedings is crucial because it can influence whether an accused individual is kept in custody during the trial or released on conditional release until the end of the case. Judges must use caution and due diligence while deciding whether to grant or deny bail requests given the significant authority placed in them to do so. This meticulous examination protects the integrity of the legal system by ensuring the fair administration of justice and lowering the possibility of abuse or inappropriate use of judicial discretion.

Triple test

The Triple Test is very important in determining whether or not someone should be released on bail. The court carefully weighs these factors, which include determining a person's flight risk, likelihood of tampering with the evidence, and capacity to sway witnesses, before making a judgement. the P. Chidambaram Case (2019) decision of the Supreme Court emphasised the significance of taking the seriousness of the crime into account when granting regular bail.

Though the Supreme Court has set clear and well-defined rules, there are still many instances where these standards are ignored, resulting in decisions from other courts that seem irrational. The fundamental rights protected by our Constitution, especially Article 21, which guarantees citizens' right to personal liberty, could be jeopardised by such situations. If these patterns in the law continue, many people who want to exercise their rights may still find it difficult to uphold the aim of protecting them.

What are the Judicial Interpretations of Pre-Arrest Bail?

Pre-arrest bail or anticipatory bail should only be granted under extraordinary circumstances, according to the Supreme Court of India, which made this determination in the 1980 case of Gurbaksh Singh Sibbia v. State of Punjab. It highlighted Article 21's guarantee of the right to life and personal freedom. However, restrictions on anticipatory bail were placed by Salauddin Abdulsamad Shaikh v. State of Maharashtra (1995), which were eventually overturned by SS Mhetre v. State of Maharashtra & Ors (2010). In a recent ruling, Sushila Aggarwal and others v. State (NCT of Delhi)(2020) reiterated the basic norm that anticipatory bail should not be restricted while emphasising the need for protection against undue suffering brought on by unfounded charges.

These judicial interpretations of pre-arrest bail highlight that the application will only be rejected or accepted on the basis of representation by the applicant. Hence it can be said to be an unbiased evaluation by the Supreme Court, especially in extreme circumstances. The primary goal of this legal development is to protect people from undue hardships caused by unjustified accusations and evidence until a just and fair conclusion is reached.


Why do you need a lawyer in a Bail matter?

Obtaining bail is an extremely important step for an accused in the criminal justice system and has to be approached with utmost care. Upon arrest, the first step for any person should be to hire the services of an expert criminal lawyer who can help advise and guide the accused through the process of obtaining bail. Only a trained legal mind can advise the best, based upon the exact nature of the offence and the special circumstances of each case that might affect the arrested person's chances of being granted bail. Since a lawyer has knowledge of the law related to each offence, the precedents operating in the field, and an understanding of the surrounding circumstances of the case, hiring a criminal lawyer becomes essential to the process of obtaining bail. You can also ask a lawyer online a free legal question using LawRato's Ask a Free Question service.


These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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Comments by Users

Lokesh C Sharma
Can an accused can be a surety for co accused for the offence under section 138 of Negotiable Instrument act, kindly advise and provide some reference of judgements please. Regards

Reply by LawRato
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Ambour Surendranath
If the arrested person is mentally ill and undergoing treatment in the mental hospital please tell us the procedure for getting bail.

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