Bail and the law relating to it

Bail is the rule but not its refusal

Bail is the rule and refusal of bail is the exception. When the bail is refused the personal liberty of the citizen is deprived. Such deprivation can be done only by following the principles and procedures known to law.

That means refusal of bail must be done by following due process of law. Bail can be granted at any stage of the trial.

Bail is a judicial act

Bail means to set an arrested or imprisoned person at liberty. It is a judicial release from custody to the custody of the sureties, under the broad supervision of the court. The grant, refusal or cancellation of bail is a judicial act. Bail is a matter of judicial discretion.

No court is bound by the decision of the other court in the matter of granting bail. Each bail application in every court has to be considered on its own merit. No straight jacked formula can be laid down from the superior court except the broad ones.

Bail in bailable offences

In bailable offences, there is no question of exercise of any discretion in granting bail. It is a statutory right of the accused to get bail in such category of cases. The police officer or the court can grant bail to an accused charged with a bailable offence.

The accused person can be released on bail by furnishing a surety when bail is granted. If the person is an indigent one he can be released on bail by the police or the court on his executing a bail bond without sureties under Section 436 of the Criminal Procedure Code, 1973 (CrPC).

If the person released on bail fails to comply with the conditions in the bail bond as regards time and place of attendance, the court may refuse him to be released on bail when he appears on a subsequent occasion. The bond executed by him and his surety stand cancelled under Section 446-A of CrPC.

If a person released on bail under Section 436 (1) indulges in acts subversive of a fair trial the High Court or Sessions Court may cancel his bail and commit him to custody.

The police officer arresting a person without warrant on a bailable offence must inform the person of his right to be released on bail, under Section 50 (2) CrPC.

Purpose of bail

The principal purpose of bail is to ensure the presence of the accused at his trial on one hand and not to unreasonably interfere with his personal liberty on the other.

The purpose of taking bail bond from sureties is to make the sureties responsible for ensuring the presence of the accused whenever required.

No bail in case of grave offences

When a person accused of guilty of a non bailabe offence appears or is produced before the court other than the High Court or the Court of Sessions, the general practice is that he may be released on bail at the discretion of the court under Section 437 (1) CrPC.

But when the person accused of a non bailable offence punishable with death or imprisonment for life appears or is produced before such court, he should not be released on bail under Section 437 (1) (i) CrPC. However this restriction put by the statute is not applicable in case the accused person is a woman, child, sick or infirm person the court has discretion in releasing such a person. That the accused person is a woman would not entitle her for bail outright, if the offence is a grave or heinous one.

Similarly, if the accused person had been previously convicted for an offence punishable with death, imprisonment for life, or imprisonment for seven years, or more, he should not be released on bail.

Any person previously convicted twice for an offence for three years or more but less than seven years also cannot be released on bail. But the court can release these persons if it thinks it is just and proper to release them on some special reasons. The court should record such special reasons.

The court while granting bail to persons accused of grave offences should impose some conditions as necessary in the circumstances under Section 473 (3) CrPC. The conditions to be imposed are that the accused should attend in accordance with the stipulations in the bail, should not commit similar offences, should not influence any one acquainted with the facts, or should not tamper with the evidence. Such conditions can be imposed only by the court and not by the police officer.

A person who has broken the conditions of his bail bond shall not be entitled to bail when he is brought to the court subsequently.

Matters to be considered in bail

In a non-bailalbe offence, bail is not a matter of right but a matter of discretion of the court or the police officer.

The scope of discretion is inversely proportional to the gravity of the crime. The court has better discretion than that of the police officer. The High Court and the Court of Sessions have more discretion than that of other courts. In granting bail in a non-bailable offence, the High Court or the Court of Session has statutory jurisdiction in releasing the accused on bail.

The discretion to grant or refuse bail has to be exercised according to certain rules and principles that have been laid down by the CrPC and judicial decisions.

In fact, at the stage of granting bail a detailed examination of evidence and elaborate narration of the merit of the case need not be done. A vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail. But the criminal antecedents of the accused cannot be ignored wile granting bail. Similarly, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will have to be refused.

An indicative list of factors to be considered while granting or refusing an application for bail is as follows:

  1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence
  2. nature and gravity of the charge
  3. severity of the punishment in the event of conviction
  4. danger of accused absconding or fleeing if released on bail
  5. character, behaviour, means, position and standing of the accused
  6. likelihood of the offence being repeated
  7. reasonable apprehension of the witnesses being tampered with, and
  8. danger, of course, of justice being thwarted by grant of bail.
  9. the health, age and sex of the accused
  10. the interest of the society

Any officer or court releasing any person on bail in a case of non bailable offence is required to record in writing his or its reasons for doing so. Any such order devoid of recorded reasons for granting bail suffers from non-application of mind. While granting bail, it is necessary that the roots of the accused in the community must be assessed to determine the chance of his fleeing.

Grant or refusal of bail

There is no specific provision for appeal against the order refusing to grant bail under Section 436 (1) CrPC. But the accused person can move the High Court or the Court of Sessions under 439 CrPC.

The Supreme Court (SC), in Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7) SCC 528) case says the court granting bail should exercise its discretion in a judicious manner and not as a routine manner. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken. But, there is a need to indicate in such orders the reasons for prima facie concluding why bail was being granted particularly where the accused is charged with a serious offence. Any order devoid of such reasons would suffer from non-application of mind.

While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged with a serious offence.

Statutory bail

When the accused is in custody and the investigation officer fails to conclude the investigation within 90 days in an offence punishable with death / imprisonment for life / imprisonment or a term of ten years or more, or within 60 days in other cases of lesser punishment, the accuse should be released on bail. The period starts running from the day of remand by the Magistrate.

Trial not concluded with 60 days

If a case triable by a Magistrate in a non bailable offence is not concluded with a period of 60 days from the first date of taking evidence, the accused should be released on bail if he is in custody during the whole period of trial, under Section 437 (6) CrPC. If the Magistrate otherwise directs, he should record his reasons in writing.

High court has ample jurisdiction

Under Section 439 CrPC, the High Court or the Court of Sessions has the power to direct that any person released on bail be arrested and committed to custody. The power of the High Court can be invoked by even an informant as well.

In granting bail under Section 439 CrPC, the jurisdiction of the High Court is concurrent with that of the subordinate judge. It is desirable that the Court of Sessions should be moved first. The higher court can set aside the bail order after examining the correctness of the order.

In granting bail, the High Court and the Court of Sessions have wide discretion. They are not fettered with restrictions as in the case of other courts, under Section 437 CrPC. But the courts are bound to exercise such discretion judicially according to well established principles. However a Court of Session cannot cancel a bail which has already been granted by the High Court.

Setting aside a bail order v cancelling a bail

The concepts of setting aside a bail order and cancelling a bail are totally different in criminal law, even though the results of both are the same.

The concept of setting aside the bail is applicable in the case of an unjustified, illegal or perverse order whereas the cancellation of bail is done when the person released on bail violates some bail conditions.

Setting aside the bail

When a bail order of a court is a perverse one right at the time of its granting, it is competent in law for the aggrieved party to move the High Court for cancellation of the bail in revisional application. That means once it is found that bail was granted on untenable grounds, same can be cancelled by a higher court.

However, such setting aside of bail should not be done on re-appreciation of evidence. The higher court dealing with an application for setting aside a bail under Section 439(2) can consider whether irrelevant materials were taken into consideration at the time of granting bail. That is considered so as to know to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail and granting bail.

Cancellation of the bail

The concept of Cancellation of bail is quite a different one. There is no direct provision for cancellation of bail. But when a court which released a person on bail finds it necessary because of some supervening circumstances, it can direct the person be arrested and commits him to custody under Section 437 (5) CrPC. Exercise of this power is called cancellation of bail.

The cancellation is done on the ground that the accused has violated some bail conditions subsequent to the granting of the bail. This power is given to the court and not to the police. The court which granted the bail alone can cancel it. The bail granted by a police officer cannot be cancelled by the court of a Magistrate.

Cancellation of bail is possible only by reason of supervening circumstances. The basic concept in cancellation is that when the bail order was passed it was valid and the cancellation of it is done only on account of the subsequent violation of bail conditions like the accused commits the same offence, hampers the investigation, tampers the evidence, runs away to other country, commits acts of violence etc.

However, there is no direct provision in the CrPC to cancel the bail granted by the appellate revisonal, or the sentencing court. But the only option available in such a situation is that the High Court can exercise its inherent powers in such cases if the person released on bail is grossly abusing the freedom.

Judgments for further Reading

  1. Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7) SCC 528)m available at
  2. Puran v Rambilas and Anr. (2001 (6) SCC 338), available at
  3. Lokesh Singh v State Of U.P. & Anr, available at
  4. State Through C.B.I v Amaramani Tripathi (AIR 2005 SC 3490 ), available at
  5. Gurbaksh Singh Sibbia Etc v State Of Punjab (1980 AIR 1632)’at