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This article is written by Syed Sulthana of 6th semester of BA LLB of Sri Padmavati Mahila Visvavidiyalayam, Tirupati, an intern under Legal Vidhiya


Every day we must come across the news regarding the arrest of some politician, accused, or wrongdoer being released from jail on bail. One of such burning issue is regarding the arrest of the former chief minister of Andhra Pradesh Nara Chandra babu Naidu, Where the court refused to grant bail. So what does bail mean? why it is only granted in some cases and not in all cases? What are the provisions of bail will be discussed in this article.

Every human being has some basic rights by their birth. One such basic human right is the right to freedom of movement. This right ensures personal liberty. Article 13 of the Universal Declaration of human rights expresses that everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country[1].

 Ensuring the right mentioned in the Universal Declaration of Human Rights (UDHR) the constitution of India talks about the right to freedom of movement and personal liberty in Article 19 and Article 21. The provision for bail is mentioned in the code of criminal procedure,1973 to ensure the fundamental rights mentioned in the constitution of India. The provisions of bail are discussed in the article.


Bail, rights, accused, anticipatory bail, crime, freedom, bailable offense, non-bailable offences


No country is alone in this globalised day; everything is interconnected. We saw many results following the world wars. Many organizations were founded, as well as numerous treaties and conventions. The most crucial item to safeguard is human beings’ fundamental rights. The primary responsibility of every country’s ruler is to protect the rights and interests of its people by maintaining the nation’s security. So many countries came to an accord and signed many conventions and agreements. The Universal Declaration of Human Rights is one such accord. The signed declaration is legally binding. The Indian constitution included several sections to implement the concepts outlined in the Universal Declaration of Human Rights. The concept of bail was introduced.

To preserve human rights, the notion of bail was introduced to the rules based on the Declaration of Human Rights. Human beings’ basic rights include the right to life, freedom, liberty, equality, and so on. THE INDIA CONSTITUTION provides every Indian citizen the right to roam freely around the country and live with dignity. The primary goal of arrest, whether with or without a warrant, is to ensure the accused’s presence at the time of investigation or trial. Another goal is to ensure that he is ready to receive a sentence if convicted. If both goals can be met without imprisoning the accused throughout the investigation and trial, it will be a perfect marriage of two opposing claims: individual liberty and the pursuit of justice. The bail provisions are intended to achieve this blending.

The law relating to bail and bond is incorporated under the Code of Criminal Procedure, 1973 (Cr PC)[2]. The relevant provisions have been incorporated in the Cr PC to restore liberty to an arrested person without jeopardizing the objectives of arrest. It is based on the fundamental principle of criminal jurisprudence that “bail is a rule and jail is its exception”[3].

Meaning of bail:

The word bail is not defined in the Criminal Procedure Code, 1973. However the criminal procedure code talks about the bailable and non-bailable offences under section 2(a). According to Merriam-Webster, dictionary bail means the temporary release of a prisoner in exchange for security given for the prisoner’s appearance at a later hearing[4]The main two aspects of bail are freedom of the individual and the interest of justice. which means bail is the temporary release of the person accused of some offence from jail by ensuring that the accused will not cause any hindrance in the administration of justice by escaping or going to the jurisdiction which does not come under the court of a particular area.

Objectives of bail 

The main objective of the bail is to protect the right to personal liberty of an individual. The rights of an individual do not vanish on him doing some wrongful act or being accused of some offence. The person accused of a particular offence is arrested so that he should not escape from justice. if the person is found guilty, he will be sentenced according to the provisions. What if he promises to come to court and won’t escape? Then keeping him in custody would not be righteous. In a criminal trial, the accused is considered to be innocent until proven guilty and the prosecution carries the burden of proving his guilty. This burden to prove anything essential against the accused is the legal burden and it never shifts[5].

This is when the provision for bail comes into play. The major goal of giving bail to an accused in jail is to ensure that while the trial is ongoing, if the accused is not a threat to society or intends to tamper with evidence or compel witnesses, he should not be detained.

Provisions for bail under the criminal procedure code

For every offence, the person cannot claim bail as a matter of right. There are two types of offences regarding which bail can be claimed and under which bail cannot be claimed. They are bailable and non-bailable offences. Section 2(a) of the code of criminal procedure defines bailable and non-bailable offences.

The code of criminal procedure outlines bailable and non-bailable offences under Section 2(a). Section 2(a) defines bailable and non-bailable offences as “Bailable offence” means an offence listed as bailable in the first schedule or made bailable by any other law now in force; and “non-bailable offence” includes any other offence.

The Code has no tests for determining whether a certain offence is bailable or not. It all relies on whether it was stated in the first schedule as bailable or non-bailable.

The provision for bail in the Code of Criminal Procedure, 1973 (CrPC) is principally found in Chapter XXXIII, Sections 436 to 450.

Section 436: This section governs the issuance of bail in bailable offences. It states that a person suspected of a bailable offence who is arrested or imprisoned without a warrant has the right to be released on bail.

Section 437 addresses the granting of bail in non-bailable offences. It states that if a person is arrested or held without a warrant for a non-bailable offence, he or she may be released on bail, subject to specified conditions.

Bail for a Bailable Offence

Section 436 of the CrPC deals with bail arrangements in bailable offences. This clause is mandatory, and neither the police nor the courts have any say in the matter.

Granting Bail in Case of a Non-Bailable Offence

Section 437 of the CrPC deals with bail provisions in case of non-bailable offences. It is solely at the discretion of the court. The Supreme Court ruled in Kalyan Chandra Sarkar vs. Rajesh Ranjan that the imprisonment of the accused in non-bailable charges could not be challenged as a violation of Article 21 of the Constitution.

Before granting bail, the court will consider the following factors:

1. The type and gravity of the offence

2. The nature of the evidence

3. Circumstances

4. Reasonable suspicion of witness tampering

5. The general public’s interest

Types of bails

There are three kinds of bail

  1. Anticipatory bail
  2. Regular bail
  3. Default or statutory bail

Meaning of Anticipatory

 Bail Anticipatory Bail is a pre-arrest procedure. It means that if the individual in whose behalf it is granted is later arrested on the charge for which the direction is given, he will be released on bail.

Section 438 of the CrPC addresses anticipatory bail. The court will consider the following factors while granting anticipatory bail:

1. The nature and seriousness of the accusation

2. The applicant’s background, including whether he has previously served time in jail following a court conviction for any cognizable offence.

3. The probability that the applicant would flee from justice

4. If the charge was brought with the intention of harming or humiliating the applicant by having him arrested, either reject the plea immediately or make an interim order granting anticipatory bail.

After Fir Anticipatory bail u/s 438 of the Cr. P.C. can only be filed in session or high court. If the defendant has not been arrested or surrendered. If anticipatory bail was denied by the sessions court, the aggrieved party may file an appeal with the Supreme Court under Article 136 of the Indian Constitution. If anticipatory bail was denied by the high court, the aggrieved party may file an appeal with the Supreme Court under Article 136 of the Indian Constitution.

Regular bail

Regular bail is a provision under the Code of Criminal Procedure, 1973 (CrPC) that permits an accused person to be freed on bail throughout the pendency of a trial or investigation in exchange for providing a bail bond and complying with specified court-imposed conditions.

A standard bail application can be made by the accused or on his or her behalf by a lawyer. The application should be filed with the court that has jurisdiction over the offence. The application should include information on the offence, the reasons for obtaining bail, and any other pertinent information.

Regular bail may be granted if the court is convinced that the accused is unlikely to flee or tamper with evidence and is not a danger to society. While granting standard bail, the court may additionally set conditions such as cooperating with the investigation, not leaving the country without authorization, or tampering with evidence.

The court normally determines the amount of bail that the accused must post depending on the nature of the offence, the accused’s criminal record, and other relevant circumstances. The accused can be freed from custody once the bail sum is paid or the bail bond is shown.

It is crucial to note that regular bail is discretionary and is determined by the facts and circumstances of each case. The court may deny bail if it believes the accused is likely to flee or tamper with evidence, or is a danger to society.

Interim Bail: Interim bail is granted for a limited time while a regular bail application is pending. It is frequently granted to give the accused time to make arrangements for bail.

Default Bail: A default bail is issued when an accused does not post bail within a specified amount of time, which is normally 90 days in the case of non-bailable charges.

The distinction between Anticipatory and Regular Bail

The main distinction between anticipatory bail (section 438) and ordinary bail is that anticipatory bail is granted before the arrest because the person expects to be arrested. under contrast, under regular bail, a person contacts the court or a police officer after being arrested.

Bail cancellation

Section 437(5) CrPC deals with bail revocation. The following conditions must be met before bail can be cancelled:

1. If the person flees to another country, goes underground, or escapes beyond the authority of sureties;

2. If the person on bail commits the same crime for which he is being tried or convicted;

3. While on bail, he forbids the search of sites under his control for the detection of the suspect.

4. If he tampers with evidence by intimidating a prosecuting witness, interfering with the scene of an offence to erase traces or proof of the crime, and so on;

5. If he commits acts of violence in retaliation against the police and prosecuting witnesses of those who have or are attempting to book him.

Challenges of bail:

As a coin has two sides every legislation has it’s advantages and disadvantages. The Bail provisions in Criminal Procedure Code has some drawbacks. The criminal procedure code doesn’t define the word bail but classifies offences as bailable and non-bailable where in the former bail can be granted as matter of right and in latter it is court’s discretion either to grant bail or not. Bail application can be made when police arrest. Since non-bailable offences are cognizable, a police officer can make an arrest without a warrant. Due to which the inmates in the prisons are more. Most of these inmates are under trails.

Arbitrary detentions

The court observed that an excessive number of arrests, particularly for non-identifiable violations, was not justified. It highlighted that arrest is not required and must be “necessitated” even for crimes that are punishable by law. This kind of requirement is imposed to stop them from committing any more crimes, to allow for a thorough investigation, and to stop them from vanishing or altering the evidence.


Bail is a crucial right that the accused has. It plays a vital role in safeguarding individual interests by ensuring justice. Bail is a release from police custody that ensures the accused will not evade justice and will appear in court on notice. Bails are classified into three types. Sections 436,437, and 439 of the Code of Criminal Procedure address regular bail. Section 2(a) distinguishes between bailable and non-bailable offences. Bail can be requested as a matter of right in bailable charges, but not in non-bailable offences. The cases of bail application are approximately one-third of the cases that come before Supreme court every year. The Supreme Court judges opined that the law relating to bail should be altered and it is with parliament to make such legislation. The concept of bail is established to enhance Universal Declaration of Human Rights and Article 21.Being accused of some offence an individual does not cease to be human they do have some rights. That is right to justice includes fair trail under article21 and 22 of the Indian constitution.


  1. Code of Criminal Procedure, 1973
  2. https://blog.ipleaders.in/bail-provisions-under-the-code-of-criminal-procedure/ ,last visited on Oct. 18 2023
  3. https://www.legalserviceindia.com/legal/article-5053-types-of-bail-under-crpc.html ,last visited on  Oct. 18 2023
  4. https://www.lawctopus.com/bail-provisions-in-crpc-for-judiciary-exams/, last visited on Oct. 18 2023

[1]  Universal declaration of Human Rights, § article 13, 1948

[2] Ch. XXXIII, ss. 436-450.

[3] Gurucharan Singh v. State {Delhi Administration ) (1978) 1 SCC 118.

[4] Merriam- Webster dictionary, https://www.merriam-webster.com/dictionary/bail , last visited oct. 5,2023

[5] State of Maharashtra vs. Vasudeo Ramchandra Kaidalwar (1981 3 SCC 199


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