INTRODUCTION

Bail, in law, means procurement of release from prison of a person awaiting trial or an
appeal, by the deposit of security to ensure his submission at the required time to legal
authority. The monetary value of the security, known also as the bail, or, more accurately, the
bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash,
the papers giving title to property, or the bond of private persons of means or of a
professional bondsman or bonding company. Failure of the person released on bail to
surrender himself at the appointed time results in forfeiture of the security. The law lexicon 1
defines bail as the security for the appearance of the accused person on which he is released
pending trial or investigation.
Courts have greater discretion to grant or deny bail in the case of persons under criminal
arrest, e.g., it is usually refused when the accused is charged with homicide.

What is contemplated by bail is 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."2

A reading of the above definition make it evident that money need not be a concomitant of
the bail system. As already discussed above, the majority of the population in rural India,
lives in the thrall of poverty and destitution, and don't even have the money to earn one
square meal a day. Yet, they are still expected to serve a surety even though they have been
charged with a bailable offence where the accused is entitled to secure bail as a matter of
right. As a result, a poor man languishes behind bars, subject to the atrocities of the jail
authorities rubbing shoulders with hardened criminals and effectively being treated as a
convict.

OBJECT AND MEANING OF BAIL

The object of arrest and detention of the accused person is primarily to secure his appearance
at the time of trial and to ensure that in case he is found guilty he is available to receive the
sentence. If his presence at the trial could be reasonably ensured otherwise than by his arrest
and detention, it would be unjust and unfair to deprive the accused of his liberty during the
pendency of the criminal proceedings against him. The provisions regarding the release of the

1
Law lexicon by Ramanth Iyer, (3rd ed).
2
Black's Law Dictionary 177 (4th ed.)
accused person on bail are aimed at ensuring the presence of accused at his trial but without
unreasonably and unjustifiably interfering with his liberty. There is no definition of bail in the
Code, although the terms “bailable offence” and “non-bailable offence” have been defined.3

“Bail” has been defined in the Law Lexicon as security for the appearance of the accused
person on giving which he is released pending trial or investigation.4

PROVISIONS OF BAIL AND BONDS IN INDIA

Bail in case of bailable offence

The Code of Criminal Procedure, 1973 contains elaborate provisions relating to bails. Section
4365 provides for the release on bail of a person accused of a bailable offense.

In Hussainara v. Home Secretary6, Bhagwati, J. observed that one of the reasons why our
legal and judicial system continually denies justice to the poor by keeping them for long
years in pre-trial detention in our highly unsatisfactory bail system. it suffers from property-
oriented approach which proceeds on the erroneous assumption that rise of monetary loss is
only deterred against fleeing from justice.

However, sub-section (1) Section 436 was amended to make a mandatory provision that if the
arrested person is accused of a bailable offense is an indigent and cannot furnish surety, the
courts shall release him on his execution of a bond without sureties.7 Legislature by Criminal

3
Section 2(a), Code of Criminal Procedure.
4
Govind Prasad v. State of West Bengal, 1975 CriLJ 1249
5
Section 436: In what cases bail to be taken.
(1) When any person other than a person accused of a non- 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, and is prepared at any time while in the custody of such officer or at any stage of
the proceeding before such Court to give bail, such person shall be released on bail: Provided
that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person,
discharge him on his executing a bond without sureties for his appearance as hereinafter
provided: Provided further that nothing in this section shall be deemed to affect the provisions
of sub- section (3) of section 116 or section 446A.
(2) Notwithstanding anything contained in sub- section (1), 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
refuse to release him on bail, when on a subsequent occasion in the same case he appears before
the Court or is brought in custody and any such refusal shall be without prejudice to the powers
of the Court to call upon any person bound by such bond to pay the penalty thereof under
section 446.
6
1980 1 SCC 81
7
Criminal Procedure (Amendment) Act, 2005
Procedure (Amendment) Act, 2005 insertedSection 436A8 which lays down the maximum
period for which an under trial prisoner can be detained.

Bail in case of Non-bailable offence

Provisions, as to bail in case of non-bailable offence, is laid down in Section 437 of the
code. This section gives the Court or a police officer power to release an accused on bail in a
non-bailable case, unless there appear reasonable grounds that the accused has been guilty of
an offence punishable with death or with imprisonment for life. But (1) a person under the
age of sixteen years (2) a woman; or (3) a sick or infirm person may be released on bail even
if the offence charged is punishable with death or imprisonment for life.9 Where a person is
charged with a non-bailable offence, but it appears in the course of the trial that he is not
guilty of such offence, he can be immediately released on bail pending further inquiry.

The same may be done after the conclusion of a trial and before judgment is pronounced, if
the person is believed not to be guilty of a nonbailable offence. As a safeguard, the section
provides for review of the order by the Court which has released the person on bail. The
power of the Magistrate under this section cannot be treated at par with the powers of the
Sessions Court and the High Court under Section 43910.

8
Section 236A: Maximum period for which an under trial 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.
9
Prahlad Singh Bhati vs. N.C.T. Delhi and Ors, AIR 2001 SC 1444
10
439. Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is
of the nature specified in subsection (3) of section 437, may impose any condition which it
considers necessary for the purposes mentioned in that sub- section;
(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or
modified: Provided that the High Court or the Court of Session shall, before granting bail to a
person who is accused of an offence which is triable exclusively by the Court of Session or
which, though not so triable, is punishable with imprisonment for life, give notice of the
Grant of bail is the rule and its refusal is an exception. But while granting it the Court has to
be satisfied that the order to be passed is in the interest of justice.11

Anticipatory Bail: Section 438

Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends arrest
under a non-bailable offence in India can apply for Anticipatory Bail under the provisions of
section 438 of The Code of Criminal Procedure, 1973. It is basically bail before arrest, a
person arrested cannot seek Anticipatory Bail, he would have to move for a regular bail. The
words anticipatory bail is neither found in section 438 nor in its marginal note. In fact,
anticipatory bail is a misnomer. When a court grants anticipatory bail, what it does is to make
an order that in the event of arrest, the person shall be released on bail.

The legislature in its wisdom incorporated this provision for grant of bail to a person
apprehending arrest is to prevent disgrace of being jailed or remaining in custody before he
can be released on bail. The old code of criminal procedure did not have any provision for the
same and the lawmakers realized that false and frivolous cases are filed against some people
and such persons have to necessarily be arrested before they could seek bail. Thus a
mechanism for preventing undue harassment and disgrace from arrest and detention was
devised.

In the landmark Gurubaksh Singh Sibbia case,12 the apex court opined that “It is
conceptualized on the idea of protecting personal liberty guaranteed under the Constitution of
India”. This said, it is a discretionary power and is not a matter of right. The court would use
the discretion according to the facts and circumstances of the case and under stipulated
guidelines.

application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of
opinion that it is not practicable to give such notice.
(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.
11
Mazahar Ali v. State, 1982 CrLJ 1223
12
Gurbaksh Singh Sibbia Etc vs State Of Punjab, 1980 AIR SC 1632
Cancellation of Bail

Rejection of Bail is different from the cancellation of bail.13 The Code of Criminal Procedure,
1973 contains two provisions for cancellation of Bail. The first one is laid down in Section
437(5) and the other in section 439(2). According to Section 437(5) “any court which has
released a person on bail under sub-section (1) or sub-section (2) of Section 437, may if it
considers it necessary so to direct such person to be arrested, and committed to custody”.
Thus under this section a Magistrate does not have an authority to cancel bail granted by a
police officer.

For cancellation of bail in such situation, power of the High Court or the Court of Session
under Section 439(2) will have to be invoked. Section 439(2) lays down that a High Court or
a Court of Session may direct that any person who has been released on bail under this
chapter be arrested and commit him to custody. Thus the power given to the High Court and
court of Session is very wide.

Bond of accused and sureties.

(1) Before any person is released on bail or released on his own bond, a bond for such sum of
money as the police officer or Court, as the case may be, thinks sufficient shall be executed
by such person, and, when he is released on bail, by one or more sufficient sureties
conditioned that such person shall attend at the time and place mentioned in the bond, and
shall continue so to attend until otherwise directed by the police officer or Court, as the case
may be.

(2) Where any condition is imposed for the release of any person on bail, the bond shall also
contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail to appear when
called upon at the High Court, Court of Session or other Court to answer the charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may
accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of

13
Aslam Desai v. State of Maharashtra, 1992 AIR SCW 2621
the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry
to be made by a Magistrate subordinate to the Court, as to such sufficiency of fitness.14

LAW OF BAIL AND BONDS IN UNITED STATES OF AMERICA

Evolution in America
According to the San Francisco News and the SF Chronicle, the first modern Bail Bonds
business in the United States, the system by which a person pays a percentage to a
professional bondsman who puts up the cash as a guarantee that the person will appear in
court, was established by Tom and Peter P. McDonough in San Francisco in 1898. Infact, this
was the same year that the Bill of Rights was introduced in England, and the Congress passed
the Judiciary Act. This specified which types of crimes were bailable and set bounds on a
judge's discretion in setting bail. The Act states that all non-capital crimes are bailable and
that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge.
In 1791 The Bill Of Rights was incorporated into Constitution of the United States, through
the 5th, 6th and 8th Amendments, guaranteeing citizens the right to due process of law, a fair
and speedy trial and protection against excessive bail. The Eighth Amendment to the
Constitution of the United States provides that "excessive bail shall not be required," but it
does not provide any absolute right to bail.

Current Practice
Under current law, a defendant has the right to bail unless there is sufficient reason not to
grant it. The main reasons for refusing bail according to the Bail Act 1976 are that there are
substantial grounds for believing that the defendant (1) will abscond; (2) will commit further
offences whilst on bail; or (3) will interfere with witnesses. Conditions may be applied to the
grant of bail, such as living at a particular address or, rarely, paying an amount into court or
having someone act as surety. Release on bail is sometimes referred to as police bail, where
the release was by the police rather than by a court.

The alternative to being granted bail is being remanded into custody (also called being held
on remand).

In America, every accused person is entitled to a hearing at which evidence relevant to his
individual case is considered to determine the amount of bail necessary. No precise rule can

14
Section 441 in The Code Of Criminal Procedure
be laid down that will determine the amount of bail required in any particular instance. Bail is
to be fixed according to the circumstances of each case. The matter is generally one for the
sound discretion of the trial court. Although the determination of the trial court is subject to
the review in the appellate courts for abuse of discretion, ordinarily the appellate courts will
not interfere if the amount set by the trial court is reasonable and not excessive.

The amount of a bond should, of course, be sufficient to assure the attendance of the
defendant upon the court when it is required. The bond should be fixed in such amount that
will exact vigilance on the part of the sureties to see that the defendant appears in court when
called.15

Both the Federal Constitution and state constitutions contain provisions against excessive
bail. Bail set at an amount higher than reasonably calculated to insure that the accused will
appear to stand trial and submit to sentence if convicted is excessive, and falls within the
proscription of the Federal Constitution if set by a federal court, or of the particular state's
constitution if set by a state court. But no hard-and-fast rules for determining what is
reasonable bail and what is excessive bail have been laid down. That the bail is reasonable
which, in view of the nature of the offense, the penalty attached to the offense, and the
probability of guilt of defendant, seems no more than sufficient to secure attendance of the
defendant.16

The amount of bail, in and of itself, is not finally determinative of excessiveness. What would
be reasonable bail in the case of one defendant may be excessive in the case of another.17 As
indicated below, such matters as the past criminal record of the defendant, and the nature of
the crime committed and the punishment therefore, are material factors in determining
whether bail is excessive.

Where two or more cased are pending against a defendant, the fact that bail in one case,
considered by itself, is reasonable, does not prevent the collective amount required in the
several cases from being excessive.

The gist of the problem confronting a court in setting the amount of bail is to place the
amount high enough to reasonably assure the presence of defendant when it is required, and
at the same time to avoid a figure higher than that reasonably calculated to fulfill this

15
State v Chivers, 198 La 1098, 5So 2d 363
16
Braden v Lady (Ky) 276 SW2d 664.
17
Stack v Boyle, 342 US 1, 96 L Ed 3, 72 S Ct 1; Bennett v United States (CA5 Fla) 36 F2d 475.
purpose, and therefore excessive. The general rule in federal courts is to try to strike a
balance between the need for a tie to the jurisdiction and the right to freedom from
unnecessary restraint before conviction, under the circumstances surrounding each particular
accused.18 In other words, in determining the amount of bail, the good of the public as well as
the rights of the accused should be kept in mind.

The Bail Reform Act of 1966 provides for the release of defendant on his personal
recognizance or upon execution of an unsecured appearance bond in an amount specified by
the judicial officer before whom he appears, unless the officer determines, in the exercise of
his discretion, that such release will not reasonably assure the appearance of defendant as
required, in which event specified conditions of release which will reasonably assure
defendant's appearance for trial may be imposed. The Bail Reforms Act, 1966 was initiated
by President Johnson who felt that under the Federal Rules, bail in an amount higher than
reasonably calculated to be necessary to assure the presence of the accused is excessive.

It has been stated that the factors to be taken into consideration in determining the amount of
bail are:

(1) ability of the accused to give bail,

(2) nature of offense,

(3) penalty for the offense charged,

(4) character and reputation of the accused,

(5) health of the accused,

(6) character and strength of the evidence,

(7) probability of the accused appearing at trial,

(8) forfeiture of other bonds, and

(9) whether the accused was a fugitive from justice when arrested.19

18
Spector v United States (CA9 Cal) 193 F2d 1002; United States ex rel. Rubnistein v Mulcahy
(CA2 NY) 155 F2d 1002.
19
Delaney v Shobe, 218 (inability to give bond in the amount set is not sufficient reason for
holding the amount excessive)
A major factor in determining the amount of bail in a current matter is the character and
former criminal record of the defendant. It has been held, however, that the criminal activities
and tendencies of a person applying for bail on a charge of vagrancy do not justify the fixing
of bail at an excessive amount for the purpose of keeping him in jail.

In determining the amount of bail, voluntary surrender may be considered as an indication

that the defendant has no intention of absconding from justice. On the other hand, it is also
proper, in setting a higher bail figure, to take into consideration the fact that at the time of
arrest the accused was a fugitive from justice, or the fact that the defendant has previously
absconded while under indictment.

Even where bail is a matter of right, the fact that a person has previously forfeited bail is a
factor to be considered in determining the amount of bail; in such a case bail may be set in
such amount as will reasonably assure the presence of the defendant at court, although bail
may not be refused altogether.20 In setting the bail, the court may also consider the behavior
or misbehavior of the defendant during parole from prison on a previous criminal conviction.

The probability of the establishment of guilt at the trial, or the existence of doubt as to the
guilt of the accused, is a proper consideration in determining the amount of bail. Hence a
court, in determining the amount of bail, may consider the character and strength of the
evidence by which the crime charged is supported.

A court should give some regard to the prisoner's pecuniary circumstances, since what is
reasonable bail to a man of wealth may be equivalent to a denial of the right to bail if exacted
of a poor man charged with a like offense.21 An accused cannot be denied release from
detention because of indigence, but is constitutionally entitled to be released on his personal
recognizance where other relevant factors make it reasonable to believe that he will comply
with the orders of the court.22

However, bail is not rendered excessive by the mere inability of the accused to procure bail in
the amount required. In other words, the extent of the pecuniary ability of the accused to
20
In addition to a higher bail, the court may require additional sureties after a prior forfeiture of
bail. Wallace v State, 193 Tenn 182, 245 SW2d 192, 29 ALR2d 941.
21
McCoy v United States, 123 App DC 81, 357 F2d 272; Beddow v State, 259 Ala 651, 68 So 2d
503; People ex rel. Sammons v Snow, 340 III 464, 173 NE 8, 72 ALR 798; Green v Peit, 222 Ind
467, 54 NE2d 281; State v Mastrial, 266 Minn 58, 122 NW2d 621, certden 375 US 942, 11 L Ed
2d 274, 84 S Ct 349; Royalty v State (Miss) 235 So 2d 718; Ex parte Royalty v State (Miss) 235
So 2d 718; Ex parte Malley, 50 Nev 248, 256 P 512, 53 ALR 395
22
Bandy v United States (US) 7 L Ed 9, 82 S Ct 11
furnish bail in not controlling, if it were, the fixing of any amount, no matter how small,
where the accused had no means of his own and no friends who were able or willing to
become sureties for him, would constitute a case of excessive bail, and would entitle him to
got at large on his own recognizance. It is the incarceration of those individuals who cannot
meet established money bail requirements, without meaningful consideration of other
possible alternatives, which infringes on both due process and equal protection requirements.

The current American position is stated as follows in a standard treatise "There is power in
the court to release the defendant without bail or on his own recognition."