Sunday, 23 January 2022




Bail is a legal phrase that refers to an accused person's temporary release from custody. Bail is derived from the French word bailer, which meaning "to deliver" or "to give." Bail is a term that has been used for a long time. According to the Oxford definition, bail is the temporary release of an accused person pending trial or the deposit of a quantity of money as a guarantee of the accused's appearance in court. Under the CRPC, the term "bail" is not defined. Bail is a type of security given to the court by the accused that he would appear in court to face the charges levelled against him, and it includes personal bonds and bail bonds.

From section 436 to 450 of the Criminal Procedure Code, the provisions for bail and bonds are specified.


The main objective behind this mechanism is that accused is required by the court during the trial he must appear in court for the trial but this should be ensured without curtailing the basic rights of the accused. And at this situation the process of bail is important. The process of bail is extremely complex mechanism as it should be done with great care. The reason it's so delicate is because an accused applies for bail while his or her case is ongoing in court, and it's impossible to say whether the accused is innocent or guilty. When bail is not granted to the accused, it can restrict the liberty of the innocent accused, or when bail is granted, it can give extra-liberty and freedom to the true criminal.

Bail When and when not to be granted

The phrase bailable offence is defined in the Code of Criminal Procedure, 1973, as an offence that is shown as bailable in the first schedule, or that is made bailable by any other law now in force; while the term non-bailable offence is defined as any other offence other than a bailable offence. The difference between bailable and non-bailable offences is determined by the gravity of the crime, the risk of the accused fleeing, evidence tampering, previous behavior, the accused's health, age, and sex. Though the Crpc contains a schedule for classifying offences as bailable or non-bailable, non-bailable offences are primarily those that are penalized by imprisonment for a period of not less than three years.

The objective of bail is to ensure that an accused person appears in court when required, however in some instances, bail is not required.

The essential rules for granting or denying bail can be described as follows:

a. Bailable and non-bailable offences are the only two types of offences.

b. In the case of bailable offences, the accused has the right to request and be granted bail under section 436 CRPC.

c. In cases involving non-bailable offences, section 437 CrPc establishes certain basic factors for the judge to consider while granting or denying bail. The nature of the offence, prior criminal histories, and probability of guilt are only a few of the criteria.

d. In circumstances when there is a fear of arrest, Section 438 CRPC deals with anticipatory bail.

There are other concerns that the honorable court should consider before granting bail, such as the threat of a witness being threatened, the chance of evidence being tampered with, and so on.

The Supreme Court declared in Free Legal Aid Committee of Jamshedpur vs. State of Bihar that in a session's case, if the magistrate has granted bail, the accused does not need to seek bail from the court of sessions.

In the case of Haji Mohamed Wasim v. State of Uttar Pradesh before the Allahabad High Court, the validity of bail issued by police personnel was called into doubt. In this case, the accused chose not to appear in court after being granted bail by the police. As a result, the trial court issued a non-bailable warrant, which the accused then appealed under section 482. As a result, the court determined that he must seek fresh bail from the trial court. But in contrary in the case Monit Malhotra v. state of Rajasthan, the SC quashed the asking of the petitioner to submit the fresh bail and bond.


It can be concluded that the concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released on a temporary basis but needs to appear in court whenever required by the court. The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from police custody. These provisions envisaged in the code gives the brief regarding the provisions of the bail. The process of bail is a legitimate process.

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