Bail

Allowing a person charged with a criminal

offence to be out of jail
Release of an accused pending trial or
investigation
Presumption of innocence of an accused till he
is found guilty
No definition in CrPC
Bail Bond Security for the appearance
It covers both release on ones own bond, with
or without sureties.
 Classification
Bailable offence - Sec 2(a)- shown as bailable
in the first Schedule bail is a matter of right
Non Bailable offence Any other offence -
Discretion of the court.
Serious offences more than 3 years
imprisonment
Schedule I covers only IPC offences
 Contd.
Cognizable Non-Bailable
Non- Cognizable Bailable
Exceptions are there
Ss. 309, 341,342 - Cognizable Bailable
Ss. 355,493,495 - Non- Cognizable Non- Bailable
Bail is a rule and Jail is an exception
State of Rajasthan, Jaipur V. Balchand @ Baliay case
(1977)
Babu singh V. State of UP (1978)
 Provisions as to Bail
Chapter XXXIII (Ss. 436- 450)
Sec. 436 Bailable offences
Sec. 437 Non-bailable offences
Sec. 438 Anticipatory Bail
Sec. 439 Special Powers to HC and Sessions Court

Bail by Police
Bail during Investigation
Bail in appeal stage
 Bail by Police during Arrest
Without Warrant
Sec. 42,43, 56, 59
With Warrant
Sec. 71- Bail by Police in case of bailable
warrant
Sec. 81 Bail when arrest is made outside
jurisdiction
 Bail during Investigation and
custody
Sec. 167(2) Bail after 60 or 90 days of custody
Sec. 169 If there is no sufficient evidence or
reasonable ground of suspicion
Sec. 170 - If investigation has disclosed the
offence to be bailable
Sec. 389 - Post-Conviction and Pre-Appeal Bail
Reference, Revision
Preventive actions, Witness and Lunatics
 Bail for Bailable offences (Sec.
436)

Any person other than a person accused of a

non-bailable offence
Arrest without warrant
Released on bail on executing a bond without
sureties for his appearance.
Section 50(2) - Obligation to notify about the
right to get bail if he is detained on a bailable
offence.
 Amount of Bond
Imposing very high amount for bail
Section 440(1) - Amount of bail bond cannot be
unreasonably high.
Section 436 - An indigent person may be released on
his own bond.
Indigent Person - Unable to give bail within a week
Section 436 A (2005) - A person to be released on
his own surety if he has already spent half the
maximum sentence. Not applicable to death
Sentence.
 Hussainara Khatoon V.
Home Secretary, State of Bihar(1979)
1. the length of his residence in the community;
2. his employment status, history and his financial condition;
3. his family ties and relationships;
4. his reputation, character and monetary condition;
5. his prior criminal record including any record of prior release
on recognizance or on bail;
6. the identity of responsible members of the community who
would vouch for his reliability;
7. the nature of the offence charged and the apparent probability
of conviction and the likely sentence in so far as these factors
are relevant to the risk of non-appearance; and
8. any other factors, indicating the ties of the accused to the
community bearing on the risk and wilful failure to appear.
 Contd.
Amount of the bond should not be fixed
mechanically.
Inquiry about solvency great harassment and
deprivation of liberty.
Under trial prisoners - inability to produce
sufficient financial guarantee
Violation of Art. 21
Right to free legal aid
 Section 436A (2005)

Maximum period of Detention for under trial

of the maximum punishment period for that
offence
Not applicable to death sentence
Proviso Detention can be continued on
recorded reasons after hearing PP
Not more than the maximum period of
punishment
 Bail for Non-Bailable offences
Sec. 437(1) Accused of non-bailable
offence
Sec. 437 (2) Offence found to be
bailable
Sec. 437(6) Trial is not concluded
within 60 days
Sec 437 (7) After arguments but
before Judgment
 Bail for Non-Bailable offences
Sec. 437(1)
Arrest without warrant
Accused of or suspected of non-bailable
offence
No bail (Exceptions)
Offence is punishable with death or life and
reasons to believe about his guilty or
Cognizable offence and Previous conviction
Previous conviction
Death, life or more than 7years
two or more times for cognizable offence(3-7yrs)
(2006)
 Sec. 437(1) - Proviso
Under 16 yrs, woman, sick or infirm
Court finds any special reason
Undertaking given by the accused for
Identification parade
(2006) Amendment: Offence punishable with
death, life or more than 7 yrs
Only after hearing Public Prosecutor
 Other grounds for Bail
under Sec 437
Sec. 437 (2) - After Investigation, Inquiry or
Trial - Offence found to be bailable released
on own bond without sureties
Sec. 437(6) Trial by a Magistrate for a non-
bailable offence - not concluded within 60 days
from the 1st date fixed for taking evidence
Sec 437 (7) After arguments but before
Judgment reasons to believe that the
accused guilty of no offence
 Conditions for Bail- Sec 437(3)
Offence punishable with imprisonment above 7yrs
or
Specified offences affecting state, human body or
property including abetment and attempt of it
Conditions:
Attending the court
Not to commit the same offence
Not to Induce the witness or tampering evidence
Court has to record reasons for granting and
refusing bail - Sec. 437(4)
 Cancellation of Bail
Sec 436(2) absconds or broken any
conditions of his bail bond
Sec 437 (5)
Commits the same offence
Obstruction to police or not-cooperating
Tampers with the evidence
Runs away to a foreign country or other
State of India
 Appearance before the Next
appellate Court Sec. 437A

Accused has to execute bond with sureties

Before conclusion of trial or disposal of
appeal
Appearance before the higher court
Only valid for 6 months
 Anticipatory Bail Sec 438
In anticipation of Arrest or threat
Only for a Non-bailable offence
Released immediately on arrest
Grounds :
Reason to believe about arrest (FIR, complaint)
Anticipates arrest for non-bailable offence
Only before Sessions court and High Court
(concurrent jurisdiction)
Court will issue notice to PP and SP of police
depending upon the various factors.
 Factors
Nature of the offence
Possibility of absconding
Antecedents including previous conviction
False complaints and accusations

Bail may be granted with or without

conditions
In case of rejection, the police will
immediately arrest without warrant
Duration and cancellation of AB

Till the conclusion of the trial unless duration

is fixed or it is cancelled
Cancellation:
HC only by HC
Sessions court by HC also
 Special Powers regarding Bail
Sec 439
Conditional/ Unconditional Bail to any person
Notice to PP: exclusively triable by court of
session or punishable with life
Cancellation of Bail applies to Sec.436 and
437 also.
New facts, suppression of facts and violation
of any bail condition
 State of Rajasthan, Jaipur V. Balchand
@ Baliay case (1977)
Facts : The petitioner-respondent (27 yrs) was
convicted and sentenced by the Sessions Court but
released after the judgment of the High Court.
State filed an appeal against acquittal by the High
Court and the petitioner moved an application for
bail.
Findings : The basic rule is bail, not jail; the
gravity of the offence involved and the
heinousness of the crime should be considered
while granting bail.
 Rasiklal V. Kishore Khan chand
Wadhwani (2009)
Facts: Complaint was filed before the
Magistrate for Defamation (Bailable).
Magistrate granted bail and complainant
challenged it before HC which cancelled bail.
Accused filed an Appeal as SLP
Findings: Right to Claim Bail in a bailable
offence is an absolute right. There is no
question of discretion in granting bail u/s. 436.
 Balchand Jain V. State of M.P. (1976)
Facts : Accused was arrested under Defence and
Internal Security of India Rules, 1971. Sessions
Judge rejected the bail application. Dismissing
his appeal, the High Court held that the express
provisions of r. 184 of the Rules superseded
Sec. 438 of the Code.
Findings: This extraordinary power is exercised
only in exceptional cases. This section can be
invoked only in cases of non-bailable offences
and not for bailable offences.
 Gurbaksh Singh Sibbia V. State of Punjab
(1980)
Facts : The appellant - Sri Gurbaksh Singh Sibbia
was a Minister of Irrigation and Power in the
Congress Ministry of the Government of Punjab.
Grave allegations of political corruption were
made against him and others. AB petition filed
before the HC and it was rejected.
Findings: Scope of Judicial balancing of personal
liberty and the investigational powers of the
Police, explained. The applicant must show that he
may be arrested for a non-bailable offence (reason
to believe)
 Jayendra Saraswathi Swamigal V.
State of T.N. (2005)
While granting bail in non-bailable offences, the
court has to consider the following factors:
the nature and seriousness of the offence;
the character of the evidence;
circumstances which are peculiar to the accused; a
reasonable possibility of the presence of the accused
not being secured at the trial;
reasonable apprehension of witnesses being
tampered with;
the larger interest of the public or the State and other
similar factors which may be relevant in the facts
and circumstances of the case
 Sections 42 (2), 43 (3), 56, 59, 169, 170, 436 and
437 for powers of police officers to release on bail;
Sections 71, 81, 88, 167, 187, 389, 390, 330, 339,
340, 436 and 437 for the general powers of Court to
release on bail
Section 395 for bail by a Metropolitan Magistrate on
making a reference;
Sections 397, 400, 439, 440 for powers of Session
Judge to release on bail; and
Sections 389, 439 and 440 for powers of the High
Court.
 Bail bonds
Amount of bond should not be excessive
High court or Sessions Court may reduce the
amount