Every person’s right to life and personal freedom is guaranteed by Article 21 of the Indian Constitution. It provides us the freedom to request bail when we are detained by any law enforcement agency because it protects our fundamental right to live with dignity and our own liberty. The year 1973 saw the addition of Section 438, which allows for anticipatory bail, to the Code of Criminal Procedure (often known as the Criminal Procedure Code, or CrPC). It is predicated on the suggestion made by the Law Commission of India, which suggested including a provision for anticipatory bail in its 41st report. As per the research, the primary reason for providing anticipatory bail is because powerful individuals may attempt to falsely accuse their competitors in order to discredit them or achieve other objectives by having them imprisoned. There doesn’t seem to be any reason to make someone submit to custody, stay in jail for a few days, and then apply for bail, with the exception of fraudulent cases that had good reasons to believe that the person accused of a crime is unlikely to flee or abuse his freedom while on bail. The moral presumption of innocence—the idea that a person is presumed blameless unless and until proven guilty—forms the basis of the “Bail” provision, particularly anticipatory bail. Article 11 of the Universal Declaration of Human Rights mentions this essential idea.


The origins of bail can be found in Plato’s attempt to establish a bond in 399 B.C. to secure Socrates’ release. The English bail system gave rise to the current one. Sheriffs were initially granted the sovereign power to imprison or discharge believed offenders in mediaeval England. For personal benefit, some sheriffs would take advantage of the bail. Sheriffs’ discretion over bail was restricted by the Westminster Statute (1275). The law specifies which offences are subject to bail and which are not, even though sheriffs continues to be able to determine the needed sum of bond. Early in the 17th century, King Charles I gave noblemen orders to lend him money. Those who didn’t comply were sent in jail. A habeas corpus petition was filed by five of the inmates, who said they shouldn’t be detained without charge or trial for an indeterminate period of time. Parliament claimed in the Petition of Right (1628) that the King had disregarded Magna Carta by imprisoning individuals without good reason.
According to the Habeas Corpus Act 1679, a magistrate has the authority to release detainees from custody upon their recognition, providing they provide one or more sureties and pay a sum at their discretion. However, this is only applicable if it is determined that the detainee is being held for an offence for which they are legally not eligible for bail. 

The Bail Act of 1976 was passed in order to provide additional requirements by which Defendants may not be granted bail, and the terms of bond fulfilment may also be modified. According to the law, judges had to grant bail to criminals unless a particular An exception was made. One of the two documented exclusions occurred when the accused refused to turn themselves in and tampered with the evidence in the case; the other occurred when insufficient proof was gathered to support a defendant’s bail. The act also abolished the acknowledgment system, which required payment of a certain sum of money. Instead, offenders were arrested for not turning themselves up. Many scholars of history have noted a 

problem in which the 1976 Bail Act encouraged judges to avoid holding prisoners in jail needlessly while also giving them more authority to manage detention. Legal analyst Susanne Bell points out that the legislation did not result in a general advancement of the legal system; rather, it permitted the provision of legal aid exclusively to defendants following a reprimand. Bell thinks that this and other little issues made the rule unsound, but it was still a good starting point for other useful uses.
The Criminal Justice Act 2003, which amends the 1976 Bail Act somewhat, mandates that offenders who test positive for Class A substances listed in the Misuse of substances Act 1971 cannot be granted bail. 


The idea of bail is the result of a struggle between the police’s ability to limit the freedom of a man suspected of a crime and the public’s assumption of innocence about the suspected individual. Bail is considered a means by which the State forces the community to assume responsibility for ensuring the convicts’ presence while also involving the community in the administration of justice. The provisions concerning the granting of bail are codified in Sections 436–450 of the Cr.P.C., Chapter XXXIII. There are two categories for offences: “cognizable” and “non-cognizable,” as well as bailable and non-bailable.

Provisions As To Bail And Bonds 

  • Sec. 436: In What Cases Bail to Be Taken
  • Sec436a: Maximum Period for Which an Undertrial Prisoner Can Be Detained 
  • Sec.437: When Bail May Taken in Case of Non-bailable Offence 
  • Sec.437a: bail Ta Require Accused to Appear Before The Next Appellate      Court
  • Sec.438: Directions for Grant of Bail to Person Apprehending Bail
  • Sec.439: Special Powers or High Court and Court of Session Regarding Bai 
  • Sec.440: Amount of Bond and Reduction Thereof
  • Sec.441: Bond of Accused and Sureties 
  • Sec.441A: Declaration by Sureties
  • Sec.442: Discharge from Custody
  • SEC443: the power to order sufficient bail when that first taken is insufficient.
  • SEC444: discharge of sureties 
  • SEC445: Deposit instead of recognizance 
  • SEC446: Procedure when the bond has been 
  • SEC446A: Cancellation of bail and bail bond
  • SEC447: Procedure in case of insolvency or death of surety or when a bond is forfeited 
  • SEC448: Bond required from minor
  • SEC449: Appeal from orders under section 446 
  • SEC450: Power to direct levy of amount due on certain recognizance


The Code of Criminal Procedure, 1973, includes detailed provisions regarding bail. The Code outlines various types of bail:

  • Bail in bailable offenses (Section 436)
  • Bail in non-bailable offenses (Section 437)
  • Anticipatory bail (Section 438)
  • Ad interim bail
  • Bail after conviction (Section 389)
  • Bail on default (Section 167(2))

1. Bail in Bailable Offenses

Section 436 mandates the release on bail of a person accused of a bailable offense. This section is obligatory, leaving no discretion to the court or police in such matters. Any accused person arrested for a bailable offense who is willing to provide bail must be released. The police’s only discretion lies in deciding whether to release the accused on a personal bond or with sureties. If the accused cannot furnish bail, the police officer must present the accused before a Magistrate within 24 hours of arrest, as required by Section 57 of the Cr.P.C. When the accused is brought before a Magistrate and is willing to furnish bail, the Magistrate must release the accused. The Magistrate’s only discretion is to decide between a personal bond or a bond with sureties. The Magistrate cannot authorize the detention of a person willing to provide bail, whether with or without sureties, even for the purpose of aiding the investigation.

The Hon’ble Supreme Court in Vaman Narain Ghiya v. State Of Rajasthan,  observed The Court has no jurisdiction when granting bail under section 436 cr.p.c, even to impose any condition except demanding of security. 

Amar Nath Singh v The State of Jharkhand  where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may by virtue of section 436 (2) refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court.

2. Bail in Non-Bailable Offenses

The provision for bail in cases of non-bailable offenses is outlined in Section 437 of the Code. This section grants discretionary power to courts (excluding the High Court or Court of Session) to release an accused on bail in non-bailable cases. It specifies the circumstances under which bail will not be granted, and when bail may be granted with specific conditions.

3. Anticipatory Bail

Anticipatory bail refers to bail sought in anticipation of an arrest. Under Section 438 of The Code of Criminal Procedure, 1973, anyone who fears arrest for a non-bailable offense in India can apply for anticipatory bail. Notably, the term “anticipatory bail” is not explicitly mentioned in Section 438 or its marginal note.

4. Bail on Default

Section 167(2) of the Criminal Procedure Code, 1973, grants judicial magistrates the authority to authorize the custody of an accused person when an investigation cannot be completed within twenty-four hours. This section specifies the maximum period of custody that can be authorized. It also mandates that if the investigation is not completed within the stipulated maximum period, the accused must be released on bail, regardless of the nature of the accusation against them.

The purpose of this provision reflects the legislative concern that once a person’s liberty has been restricted by an arrest without a warrant or court order, the investigation must proceed with the highest urgency. Individuals detained for committing an offense and undergoing investigation are statutorily eligible for bail under Section 167(2) of the Code after ninety days if the investigation pertains to an offense punishable by death, life imprisonment, or imprisonment for not less than ten years. For investigations related to any other offense, the period is sixty days. If the investigating authorities fail to complete their investigation and file a charge-sheet within these periods, the accused must be released on bail.

5. Interim Bail

There is no explicit legal provision for ad-interim or interim bail. Section 439 of the Criminal Procedure Code pertains to the High Court’s and the Sessions Court’s power to release an accused person in custody on bail. Sections 436, 437, and 439 collectively serve as repositories of the court’s authority to grant bail to individuals in custody, which applies post-arrest. Notably, the recently amended Section 438 explicitly allows for interim bail while an application for anticipatory bail is pending. This is a crucial provision, as it addresses the threat of arrest that the accused faces before their bail application is decided. Additionally, it aligns with the fundamental right to life and liberty under Article 21 of the Constitution of India. Interim bail may be granted when the court is convinced of its necessity, and it can be issued at any stage of a case through the court’s inherent power.


The Criminal Procedure Code provides only a general framework for bail provisions, with the majority of specifics shaped by judicial decisions. The courts, through their rulings, establish and can also modify judicial principles regarding bail. The term “bail” itself is not statutorily defined and is generally understood as a right ensuring freedom against state-imposed restraints, guaranteeing an individual’s appearance in court for their release. Bail decisions typically lie within judicial discretion, balancing the liberty of the accused with the broader interests of society.

Historically, the concept of bail has evolved significantly in India, becoming a crucial instrument in the judicial system. Its importance is underscored by its application from initial police-level accusations to the highest courts, encompassing anticipatory bail, special powers of the High Court and Sessions Court to grant bail, and writs like Habeas Corpus and Certiorari, all aimed at restoring individual liberty.

Under Section 2 of the Criminal Procedure Code, offenses are classified into bailable and non-bailable categories. The primary difference is that bail can be claimed as a matter of right for bailable offenses, whereas for non-bailable offenses, it is at the court’s discretion. When deciding on bail for non-bailable offenses, courts consider various factors. As human rights awareness grows alongside rising crime rates, the Supreme Court has emphasized the need to balance personal liberty with police investigational powers. Individual freedom must sometimes yield to state security, and reasonable restrictions can be imposed on rights to maintain this balance.

~ Contributed By- Spersh Gupta

Bharati Vidyapeeth New Delhi (2023-26)

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