Vous êtes sur la page 1sur 17


Submitted To Submitted By

The law lexicon defines bail as the security for the appearance of the
accused person on which he is released pending trial or investigation
Bail is granted during the pendency of the trial or an appeal. Before bail
is granted to the accused, a surety gives a guarantee to the Court that
the accused will appear in the Court as and when required. A sum of
money is to be deposited to ensure his appearance before the Court,
which otherwise stands forfeit. An application for bail aims to "procure
the release of a person from legal custody, by undertaking that he/she
shall appear at the time and place designated and submit him/herself
to the jurisdiction and judgment of the court."

Under the Criminal Procedure Code, 1973 (Cr.P.C.), there is no
definition ofbail, but the terms bailable offence and non-bailable
offence have been defined in section 2(a) Cr.P.C. as: "Bailable offence
means an offence which is shown as bailable in the First Schedule or
which is made bailable by any other law for the time being enforce, and
non-bailable offence means any other offence". Bail is a right that can
be availed by accused of bailable offences, but for persons accused of
non-bailable offences, they have to apply to a competent authority to
procure bail on merit.Sections 436 to 450 of the Cr.P.C.set out the
provisions for the grant of bail and bonds in criminal cases. The amount
of security that is to be paid by the accused to secure his release has
not been mentioned in the Cr.P.C. Thus, it is the discretion of the court
to put a monetary cap on the bond. Under the Indian legal system,
there exists a presumption of innocence until guilt is proven beyond
reasonable doubt. A bail hearing is not a hearing on the merits of the

RAMANTH IYER,Law Lexicon, (3rd ed,2012)
Black's Law Dictionary,177 (4th ed.)
matter itself and does not go into the issue of guilt. Therefore granting
of bail is the norm except in cases where specific grounds are made out
based on which the bail can be refused. If there are reasonable grounds
for believing that he has been guilty of an offence punishable with
death or imprisonment for life then the person shall not be granted

Anticipatory bail is a direction to release a person on bail, issued even before the
person is arrested. Earlier section 438 read as:
438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an
accusation of having committed a nonbailable offence, he may apply to the High
Court or the Court of Session for a direction under this Section; and that Court
may, if it thinks fit, direct that in the event of
such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes adirection under sub-
section (1), it may include such conditions in such directions in the light of the facts
of the particular case, as it may think fit, including
(i) a condition that the person shall make himself available for interrogation by a
police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts of the case
so as to dissuade him from disclosing such facts to the Court or to any police
(iii) a condition that the person shall not leave India without the previous
permission of the Court; (iv) such other condition as may be imposed under
subsection (3) of Section 437, as if the bail were granted under that Section.
(3) If such person is thereafter arrested without warrant by an officer-in-charge of
a police station on such accusation, and is prepared either at the time of arrest or
at any time while in the custody of such officer to give bail, he shall be released on
bail; and if a Magistrate taking cognizance of such offence decides that a warrant
should issue in the first instance against that person, he shall issue a bailable
warrant in conformity with the direction of the Court under subsection (1).
Since its conception, the concept of Anticipatory Bail has been under judicial
scrutiny. The landmark judgement on the subject is Gurubaksh Singh Sibbia v.
State of Punjab
. The Supreme Court, reversed the Full Bench decision of the
Punjab and Haryana High Court in this case, which had given a restricted
interpretation of the scope of Section 438, held that in the context of Article 21 of
the Constitution, any statutory provision (Section 438) concerned with personal
liberty could not be whittled down by reading restrictions and limitations into it.
The SC sought to remove unnecessary restrictions when it came to bail provided
under section 438. The Court also held that the conditions subject to which the
bail can be granted under section 437(1) should not be read into Section 438.
Section 438 (1) of the Code lays down a condition, which has to be satisfied
before anticipatory bail can be granted.
The applicant must show that he has reason to believe that he may be arrested
for a non-bailable offence. The use of the expression reason to believe shows
that the belief that the applicant may be so arrested must be founded on
reasonable grounds. Thirdly, the filing of a First Information Report is not a
condition precedent to the exercise of the power under S. 438. The imminence of
a likely arrest founded on a reasonable belief can be shown to exist even if an FIR

Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565
is not yet file. Fourthly, anticipatory bail can be granted even after in FIR is filed,
so long as the applicant has not been arrested. After arrest, the accused must
seek his remedy under S. 437 or Section 439 of the Code, if he wants to be
released on bail in respect of the offence or offenses for which he is arrested

The Section had been considered faulty by a number of Law commissions and
there were on-going discussions on its amendment, finally it was amended in
2005 by the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005)
tot the effect that
(i) the power to grant anticipatory bail should be exercised by the Court of Session or the High Court
only after taking into consideration certain factors;
(ii) upon consideration of these factors, the Court will either reject the application or issue an interim
order for the grant of anticipatory bail in the first instance;
(iii) where the Court has rejected the application or has not passed any interim order, it will be open to
the officer-in-charge of a Police Station to arrest the applicant, without warrant, on the basis of the
accusation apprehended in the application for the grant of anticipatory bail;
(iv) where the Court makes an interim order for the grant of interim bail, it will forthwith give a notice
being not less than seven days notice to the Public Prosecutor and the Superintendent of the Police
with a view to give them an opportunity of being heard when the application is finally heard;
(v) the presence of the applicant seeking anticipatory bail will be obligatory at the time of final hearing
of the application if the Court considers such presence necessary in the interest of justice on an
application made by the Public Prosecutor for such presence.

Ibid, pg. 589-590
LAW COMMISSION OF INDIA, Section 438 Of The Code Of Criminal Procedure, 1973
As Amended By The Code Of Criminal Procedure (Amendment)
Act, 2005 (Anticipatory Bail), (Law Comm. Report 203, Dec 2007)
Again, in the case of Gurubaksh Singh Sibbia v. State of Punjab
it was said that the High Court and the
Court of Session must apply their mind with care and circumspection and determine whether the case
for anticipatory bail is made out or not. No blanket order of anticipatory bail can be passed by any Court.
It can be said that the amended Section merely seeks to formalize certain aspects that are otherwise
being followed in practice without having been formally included in the Section. It needs to be borne in
mind that legislation is a sphere which is seldom perfectly complete. There may be conditions and
practices which escape formal translation into statutory laws but yet, they continue to influence the
conduct of the organs of the State and their subjects. Such conditions and/or practices may have been
initiated in the first instance in individual cases based on sound reasons, logic and rationale. Even
though the amended section 438 expounds upon the provisions required to be considered while
granting anticipatory bail, the Supreme Court has given guidelines for the same in the year 2009.
In the case of Savitri Agarwal and Others v. State of Maharashtra and Another,
a Constitutional bench of
the Supreme Court issued guidelines which the courts had to keep in mind while they decided upon the
granting of anticipatory bail. Though the power conferred under Section 438 can be described to have
extraordinary character, but this does not justify the presumption that the power must be exercised in
only exceptional cases. Nonetheless, the discretion under the Section has to be exercised with due care
and careful understanding of the case and examine it on its merits.
Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied
that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-
bailable offence and that belief must be founded on reasonable grounds. Mere fear is not belief, for
which reason, it is not enough for the applicant to show that he has some sort of vague apprehension
that an accusation may be made against him/her that might lead to arrest. The court should be able to
objectively examine the grounds on which the reasonable fear is based.Specific events and facts must be
disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the
existence of which is the sine qua non of the exercise of power conferred by the Section.
The observations made in Balchand Jain v. State of Madhya Pradesh,
regarding the nature of the power
conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437
should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for
reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the
Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of
trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may
broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse
anticipatory bail in any case if there is material before it justifying such refusal.
No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to
specify the offence or the offences in respect of which alone the order will be effective. While granting

Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565
Savitri Agarwal and Others v. State of Maharashtra and Another, AIR 2009 SC 373
Balchand Jain v. State of Madhya Pradesh, 1977 AIR 366
relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) to
ensure uninterrupted investigation. One such condition can even be that in the event of the police
making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail
shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can
become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could
not possibly be predicated when the order was passed.
It has also been observed that an interim bail order can be passed under Section 438 of the Code
without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the
Government advocate forthwith and the question of bail should be re-examined in the light of
respective contentions of the parties. The ad-interim order too must conform to the requirements of
the Section and suitable conditions should be imposed on the applicant even at that stage.
Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be
limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the
order to a short period until after the filing of FIR in respect of the matter covered by the order. The
applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code
within a reasonable short period after the filing of the FIR.
The provision can be used favourably by those who have been falsely accused and have the knowledge
that criminal allegations can be made on them and can approach the court for this remedy. The law on
anticipatory bail is mostly clear cut and devoid of doubts, but in the case of anticipatory bail, which his
mostly discretionary in nature, there cannot be any permanent principles as decisions are made on case
to case basis

Anticipatory Bail granted by the High Court can only be cancelled by it and not by the Magistrate or the
Session Judge.
Normally, very cogent and overwhelming grounds or circumstances are required to
cancel the bail already granted.

1. An order granting anticipatory bail under section 438 or bail under section 439 (1) is amenable to
appellate provisional scrutiny and may be cancelled if it was made in arbitrary or improper (and not
judicial) exercise of the discretionary power or was made without application of mind or without

Bolai Mistry v. State, 1977 Cr.L.J. 492 (Cal)
Mohant Chand Nath Yogi v. State of Haryana, AIR 2003 SC 18
consideration of all relevant circumstances or was based upon irrelevant considerations or was vitiated
by any basic error of law or was otherwise perverse.
2. An order granting bail may be cancelled in case new of supervening circumstances arise after the
release on bail such as abuse of the liberty by hampering the investigation or tampering with witnesses
or by committing same or similar offence but existence of any supervening circumstance following the
grant of anticipatory bail or bail is not he only criterion for cancelation of such bail.

3. Although the discretionary power to cancel bail is extraordinary and is to be exercised sparingly,
nevertheless, it is meant to be exercised in appropriate cases, however few those cases might be.
4. Order granting anticipatory bail or bail must not tantamount to interference with efficient exercise of
statutory functions when dealing with economic offences such as those under the fear.
5. Advantage of custodial interrogation should be taken into account in granting anticipatory bail or bail.
6. Anticipatory bail may be cancelled under section 439(2) of Code of Criminal Procedure if the accused
is found to be tampering with prosecution evidence.
Very cogent and overwhelming circumstances are
necessary for an order seeking cancelation of bail.
The cancelation of anticipatory bail already granted
can be ordered only when the accused has interfered with the course of justice by tampering with the
evidence or has misused or abused his privilege.

A. K. Murumu v. PrasenjitChoudury, 199 Cr.LJ 3460
Jairam Tiwari v. State of Bihar, 1987 Cr.L.J. 1403 (Pat)
Rajan Mahajan v. State, 2002 Cr.L.J. 2433 (Del)
Vishwanath Tiwari v. State, 1988 Cr.L.J. 333 (Pat)

Various provisions of Bail
1. Sec. 169 - If, upon an investigation under this Chapter, it appears to the officer-in-charge
of the police station that there is not sufficient evidence or reasonable ground of
suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if
such person is in custody, release him on his executing a bond, with or without sureties,
as such officer may direct, to appear, if and when so required, before a Magistrate
empowered to take cognizance of the offence on a police report, and try the accused or
commit him for trial.
2. Sec.436 Bail in a bailable offences
3. Sec. 436A Maximum period for which an under trial prisoner can be detained
4. Sec.437 Bail in non-bailable offences before criminal courts other then sessions court
& High Court.

Types of Bails

Pre Conviction Bails 50(2), 167(2), 436, 437,437A,
438, 439 of Cr.P.C., 1973
Post Conviction Bails 437A, 389(3), 389(1), 397(1)
& 415 of Cr.P.C., 1973

Bail in Bailable cases 436
436 (1) When any person accused of a bailable offence is
arrested or detained without warrant by an officer-in-
charge of a police station, or appears or is brought before
a Court, requests for bail, such person shall be released on
But in case such person is indigent and unable to furnish
security, then he be discharge him on executing a bond
without sureties for his appearance instead of taking bail
But this provision is not applicable in case of Sec. 116(3) of
Cr.P.C. or sec. 446A
116(3) Matter relating to executive magistrate
446-A Cancellation of bail-bond

Bail U/S 436A -Maximum period for which
an undertrial prisoner can be detained

Where a person has, during the period of investigation,
inquiry or trial under this Code of an offence under any
law (not being an offence for which the punishment of
death has been specified as one of the punishments under
that law) undergone detention for a period extending up
to one-half of the maximum period of imprisonment
specified for that offence under that law,
He shall be released by the court on his personal bond
with or without sureties: Provided that the court may,
after hearing the Public Prosecutor and for reasons to be
recorded by it in writing, order the continued detention of
such person for a period longer than one-half of the said
period or release him on bail instead of the personal bond
with or without sureties:Provided further that no such
person shall in any case be detained during the period of
investigation, inquiry or trial for more than the maximum
period of imprisonment provided for the said offence
under that law.Explanation. - In computing the period of
detention under this section for granting bail, the period of
detention passed due to delay in proceeding caused by the
accused shall be excluded.".

Bail is Discretion

Bail is matter of right if offence is bailable
But bail can only be a matter of discretion if offences is non-
bailable in nature.
The scope of discretion is inversely proportion the gravity of
The scope of discretion is as below:-
Court of S.C. > Court of H.C.>Court of sessions > Court of
judicial officers > Police officers
LCR Pg. 316-318
Page 293 of the Cr.P.C. by R.V.Kelkar

Points for cancellation of Bail AIR 1951 Mad.

Where person on bail has committed the same offence
If accused hampers the investigation
If accused tempers with the evidences
If accused runs away to a foreign country or go beyond the control
of his sureties
If accused commits act of violence in revange, against the police
and the prosecution witnesses and those who have booked him or
are trying to book him.

The following factors and parameters can be
taken into consideration while dealing with the
anticipatory bail:

1. (i) The nature and gravity of the accusation and the exact role of the accused must be properly
comprehended before arrest is made;

2. (ii) The antecedents of the applicant including the fact as to whether the accused has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence;

3. (iii) The possibility of the applicant to flee from justice;

4. (iv) The possibility of the accused's likelihood to repeat similar or the other offences.

5. (v) Where the accusations have been made only with the object of injuring or humiliating the
applicant by arresting him or her.

6. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very
large number of people.

7. (vii) The courts must evaluate the entire available material against the accused very carefully. The
court must also clearly comprehend the exact role of the accused in the case. The cases in which
accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court
should consider with even greater care and caution because over implication in the cases is a
matter of common knowledge and concern;

8. (viii). While considering the prayer for grant of anticipatory bail, a balance has to be struck
between two factors namely, no prejudice should be caused to the free, fair and full investigation
and there should be prevention of harassment, humiliation and unjustified detention of the

9. ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of
threat to the complainant;

10. x. Frivolity in prosecution should always be considered and it is only the element of genuineness
that shall have to be considered in the matter of grant of bail and in the event of there being some
doubt as to the genuineness of the prosecution, in the normal course of events, the accused is
entitled to an order of bail.

Case Laws
1. State of Rajasthan v. Bal Chand, AIR 1977 SC 2447
2. Savitri Agarwal and Others v. State of Maharashtra and Another, AIR 2009 SC 373
3. Balchand Jain v. State of Madhya Pradesh, 1977 AIR 366
4. Gurubaksh Singh Sibbia v. State of Punjab (1980) 2SCC 565
5. Bolai Mistry v. State, 1977 Cr.L.J. 492 (Cal)
6. Mohant Chand Nath Yogi v. State of Haryana, AIR 2003 SC 18
7. A. K. Murumu v. PrasenjitChoudury, 199 Cr.LJ 3460
8. Jairam Tiwari v. State of Bihar, 1987 Cr.L.J. 1403 (Pat)
9. Rajan Mahajan v. State, 2002 Cr.L.J. 2433 (Del)
Legislations and Bills
1. The Code of Criminal Procedure, 1973
2. The Code Of Criminal Procedure (Amendment) Act, 2005

Books, Reports
1. RAMANTH IYER, Law Lexicon, (3rd ed,2012)
2. Black's Law Dictionary, 177 (4th ed.)
3. R.V. KELKAR, Criminal Procedure,(5
ed. 2008)
4. RATANLAL & DHIRAJLAL, The Code of Criminal Procedure, (19
ed. 2013)
5. LAW COMMISSION OF INDIA, Section 438 Of The Code Of Criminal Procedure,
1973, As Amended By The Code Of Criminal Procedure (Amendment) Act, 2005
(Anticipatory Bail), (Law Comm. Report 203, Dec 2007)