India’s prisons are overflowing with convicts awaiting trial. The majority of them are not only underprivileged and ignorant, but they also include women. As a result, many of them are inheriting a culture of offense. The Supreme court has noted that despite the fact that arrest is an extreme action that results in a deprivation of liberty and should therefore be used sparingly. A democracy can never give the impression of becoming a police state since the two are logically incompatible.


The term “bail” has not been defined in the Code, though is used very often.
A bail is nothing but a surety inclusive of a personal bond from the accused.
It means the release of an accused person either by the orders of the Court or
by the police or by Investigating Agency.

It is a set of pre-trial limitations put on a suspect while allowing any meddling with the legal system. Therefore, it is a conditional release based on the suspect’s earnest promise to cooperate with the investigation and the court case.

According to the Black’s Law Dictionary:

A security such as cash or a bond; esp., security required by a court for the release of

a prisoner who must appear in court at a future time.


The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of the Supreme Court. This again is on the touchstone of Article 21 of the Constitution of India.

Nikesh Tarachand Shah v. Union of India

In this case the Supreme Court held that

  • it is not necessary to refer to decisions that deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail.
  • that the object of bail is to secure the attendance of the accused at the trial,
  • bail is not to be withheld as a punishment.

Sanjay Chandra v. CBI

the Supreme Court observed that :

The object of bail is neither punitive nor preventative. The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail.

Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

Rights of life and personal liberty

Article 21 is the Ark of the Covenant so far as the Fundamental Rights Chapter of the Constitution is concerned.

It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India
and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution].

Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248].


it is stated:

Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention
or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that


Though the word ‘bail’ has not been defined as aforesaid, Section 2A defines a bailable and non-bailable offense. A non-bailable offense is a cognizable offense enabling the police officer to arrest without a warrant.

Sections related to Bail issues :

  • Section 41: When police may arrest without warrant
  • Section 41A: Notice of appearance before police officer
  • Section 60A: Arrest to be made strictly according to the Code

When non-bailable warrants should be issued

Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result.

This could be when:

  • it is reasonable to believe that the person will not voluntarily appear in court; or
  • the police authorities are unable to find the person to serve him with a summon; or
  • it is considered that the person could harm someone if not placed into custody immediately.

Section 389 of the Code:

Suspension of sentence pending the appeal; release of appellant on bail.—

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also,if he is in confinement, that he be released on bail, or on his own bond.
Provided that the Appellate Court shall, before releasing on bail or on hisown bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing
cause in writing against such release .

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted
that he intends to present an appeal, the Court shall, —

  • where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
  • where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term
or to imprisonment for life, the time during which he is so released shall be
excluded in computing the term for which he is so sentenced.”

Section 436A of the Code

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:”

This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial.

Thus, in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.

  • Bhim Singh v. Union of India: Court said that while dealing with Section 436-A following directions must be followed
    • jurisdictional Magistrate/Chief JudicialMagistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure.
    • judicial officers shall identify the undertrial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436-A pass an appropriate order in jail itself for release of such undertrial prisoners who fulfil the requirement of Section 436-A for their release immediately.

Section 437 of the Code

Deals with : When bail may be taken in case of non-bailable offence.

Section 437 of the Code is a provision dealing with bail in case of non-bailable offenses by a court other than the High Court or a Court of Sessions.

Here again, bail is the rule but the exception would come when the court is satisfied that there are reasonable grounds that the accused has been guilty of the offense punishable either with death or imprisonment for life.

Similarly, if
the said person is previously convicted of an offense punishable with death or imprisonment for life or imprisonment for seven years or more or convicted previously on two or more occasions, the accused shall not be released on bail by the magistrate.

Proviso to Section 437 of the Code mandates that when the accused is under the age of sixteen years, sick or infirm or being a woman, is something which is required to be taken note of.

Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 has held:

Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Session, the Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 ofthe Code.

The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.”

Section 439 of the Code

Special powers of High Court or Court of Session regarding bail.

56.Section 439 confers a power upon the High Court or a Court of Sessions regarding the bail. This power is to be exercised against the order of the judicial magistrate exercising power under Section 437 of the Code or in a case triable by the Court of Sessions exclusively.

In the former set of cases, the observations made by us would apply to the exercise of power under
Section 439 as well.

Hussainara Khatoon & Ors v Home Secretary, State of Bihar, 1980 (1)

It was held that:

In determining which conditions of releases will reasonably assure appearance, the judicial officer shall, on the basis of availableinformation, take into account the following:

  1. nature and circumstances of the offence charged,
  2. the weight of the evidence against the accused,
  3. the accused’s family ties, employment, financial resources, character and mental condition,
  4. the length of his residence in the community, his record of convictions,
  5. his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

Conclusion and directions derived by Supreme Court on the Issue of Bail:

The Hon’ble Court has made the following observations

  • Government of India should enact separate law for Bail to streamline the grant of bails.
  • The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra).
  • The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.
  • The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.
  • An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders.
  • Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application.
  • Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.