The term Bail has not been defined anywhere in the Code whereas Black’s Law Dictionary defines it as “To procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court” and Law Lexicon define it as “A security for the appearance of the accused person on giving which he is released pending trial or investigation.


Generally, a person is put behind bars in order to ensure the following two things:

  1. Presence at the trial
  2. Availability to receive the sentence

However, in certain cases, bail can be granted if the Court is assured that by detaining the accused no reasonable purpose would be sought and his appearance could be sought otherwise also. Granting of bail goes in line with the principle that an accused is presumed innocent until proven guilty.

It can also be granted to prevent the accused from being subjected to the psychological and physical deprivation of jail life.

One more objective is to ensure that the burden of the arrest of the accused does not have adverse inference on the innocent family members. If the accused is not likely to abscond, in such cases granting bail should not be an issue. The object of detention pending criminal proceedings is not punishment and the law favours allowance of bail, which is the rule, and refusal is the exception.

Bailable & Non – Bailable Offences

Bailable Offence

An accused charged with a bailable offence has the right to be released on bail under section 436 of the Cr. P.C.  However, the Court is empowered to refuse the same for a bailable offence if the accused fails to comply with the conditions of the bail bond.

Examples are as voluntarily causing hurt U/S-323, causing miscarriage U/S-312, Attempt to commit suicide U/S 309, being a member of unlawful assembly U/S-142, and Bribery in relation to the election.

Non – Bailable Offence

An accused charged with a non – bailable offence has no right to be released on bail; however, his release rests on the discretion of the Court hearing his application for the same. The Court may refuse to grant bail in a non – bailable offence if the credential of the accused/applicant is doubtful

Examples are Murder U/S-302, Dowry Death U/S-304-B, Rape U/S-376, kidnapping U/S- 363, And Attempt to murder U/S-307.

First Schedule of Cr. P.C.

It is to be noted that the Code has not given any precise criterion or test to determine whether an offence is bailable or non-bailable. However, the first schedule provides for the classification of bailable and non-bailable offences. It provides that an offence punishable with imprisonment for three years or more shall be considered as a “non-bailable offence”. The schedule refers to all offences under IPC and classifies them as bailable and non-bailable.

Cases where release on bail is imperative

As per Section 167 of Cr.pc If the police authorities does not complete the investigation within 24 hours they shall produce the accused to the nearest juducial magistrate. The magistrate may either grant  police custody or judicial custody not exceeding 15 days. The magistrate having juruisdiction may grant futher judicial detention for period of 90 days in case the offence is punishable with Death, Life Imrisonment or exceeding 10 years or 60 days in other cases. But if the police authorities are not able to complete the investigation even in above-said 60-90days, the accused shall be granted bail, if he furnishes for the same.

Cases where the Court has discretion in granting bail

  1.  In cases of non-bailable offences
  2. No Bail in case of offence punishable with the death or imprisonment for life
  3. No bail for habitual offender or person previously convicted of a serious offence
  4. the Court shall not reject the bail  merely because the the witnesses has to  identify the accued during the investigation.

Cancelation of Bail

The Power to cancel bail is provided under section 437(5) and section 439(2). Only the Court who has granted the bail has the power to cancel the same and not the Police. There is no requirement to prove the case biyond reasonable doubt, In case of cancellation of the same in a criminal case. The following is a non-exhaustive list of contingencies upon happening on which, the bail can be canceled.

  • Commission of offence
  • Threatening of witness

Tampering with the evidence

-Likely to abscond to a foreign country

– Commission of acts of violence against police or others in the court

– Hamper investigation

Rejection of Bail vis-à-vis Cancellation of Bail

Both these concepts are entirely different. It is easier to reject a bail, then to cancel the same that is already granted. Cancellation of bail is mainly a review of the decision already tendered, and can only be permitted if there are some supervening circumstances and it would cause prejudice to a fair trial.


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