Bail – Provisions As To Bail


Chapter 33 of the code of criminal procedure talks about the “PROVISIONS AS TO BAIL AND BONDS”. It is constituted from Section 436 to Section 450 of the code. As I’ll be only dealing with the provisions as to Bail only, this is given under code from section 436 to section 439.

On dealing with bail people mostly lack in mentioning about the Section 389 of the code.

The word Bail as like Arrest is not defined under the code. according to Webster’s definition the word Bail means the process by which the person is released from the custody.


1. To shield a person from a mischievous person’s false statement.

2. Presumption od innocence of the accused until he is found guilty.


Hussainara Khatoon vs. Home Secretary ,(1980)1SCC81:1980SCC(cri)23.

According to Article 21 of the constitution of India, it is the fundamental right of the person to “free movement”.

Types of offence

1. Bailable offence

These offences are those offences for which there is punishment with less than 3years or up to 3 years of imprisonment.

2. Non-Bailable offence

The offences for which there is a punishment of more than 3 years of imprisonment.

The provision of the Anticipatory Bail is mentioned is Sec 438 of the code.

Cases in which bail could also be granted (whether release on bail is mandatory?)

In the case of bailable offence, it’s mandatory to grant bail to the arrested person and just in case of non-bailable offence it depends upon the discretion of the court. Section 436 of the code talks about the cases during which bail are often taken and section 437 of the code talks about the cases during which the bail could also be taken just in case of non- bailable cases.

Cases during which bail to be taken (section 436 of CR.PC)

In this case, if an individual who isn’t guilty of any non-bailable offence and gets arrested without a warrant by the police authority and is ready to offer bail, then it’s the duty of the police authorities to release him. The person arrested could also be released on the bond without submitting any sureties.

Appealability of the order (section 439 of the code)

Section 439 of the code states that any orders passed under section 436 of the code shall be appealable.

1. The order made by the magistrate to the session’s judge is appealable. just in case when the court of sessions passes an order to the court where an appeal lies from an order made by such court.

Section 439-

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that subsection;

(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.[1]

Investigation incomplete (section 167 of the code)

Under section 57 of the code states that an individual arrested or taken into custody has got to be released after 24 hours. Within those 24 hours, he has got to be presented before the magistrate with a notice. the amount of 24 hours are often extended if the investigation regarding the offence or crime committed has not been completed.

Section 167 states that so as to increase the amount of 24 hours for the aim of investigation prior order has got to be obtained from the magistrate. If the investigation isn’t completed the person arrested or detained shall be released. the amount of detention shall not exceed 90 days (in the case where the offence is punishable with the execution or life imprisonment) and 60 days (in the case where the offence is punishable for a term but ten years).

The maximum period that an under-trial prisoner are often detained (section 436-A of the code)

Under section 436 A of the code states that the detention period for an undertrial prisoner aside from the one who is accused of the criminal offences punishable with death or captivity shall be released from detention if the person has been detained for one half the utmost sentence provided for the offence committed by him. When bail be taken just in case of non-bailable offences (section 437 of the code)? It depends upon the discretion of the court or the police officials that they’ll release the person arrested for non-bailable offences until and unless there exists any reasonable grounds or apprehension that person arrested has committed any crime and isn’t guilty of any criminal liabilities which is punishable with captivity or the execution.

Bail to need accused to seem before subsequent appeals court (section 437 A of the code)

Under section 437A of the code, it’s been stated that so as to seem within the higher court as and when the upper court issues the notice against the judgment of the court it becomes mandatory for the court or the appeals court which needs the accused to execute the bail with sureties.

What does one mean by the Anticipatory Bail?

Under section 438 of the code, it’s been stated that the term anticipatory bail are often understood through the expression anticipatory. Anticipatory bail is that the bail granted by the court in anticipation of the arrest. When this bail is granted to an individual it ensures that just in case if the person is arrested within the near future then such person shall be released on this anticipatory bail. No questions are often raised on the discharge unless the person executing this bail is arrested and thus it totally depends upon the arrest that the order granting such bail becomes operative. The following provision of section 438 of the code was recommended by the law commission. On its 48th report, they expressed their observations regarding the supply of anticipatory bail and stated that such provision may be a useful addition to the code but it should be utilized in extraordinary or exceptional cases only.

Section 438 of the code runs as follows

When a person having the reasonable apprehension that he could also be accused of committing the offence of non-bailable nature then such person can apply for anticipatory bail within the supreme court or the sessions court. The role of the court having competent jurisdiction shall give him direction under section 438 of the code that in the time when he gets arrested he shall be released on bail after taking into consideration the subsequent conditions shall accept or reject the appliance filed for anticipatory bail by the person getting arrested. Following are the factors: 1. The accusation made shall be grave and high 2.Likelihood of the applicant to escape or abscond from justice 3.When the accusation is formed with the intention of humiliating or injuring the person by making him arrested through that accusation.

Conditions under section 438 of the code involve the subsequent things. 1. The applicant filing for the anticipatory bail shall have the reasonable apprehension of getting arrested 2. The arrest of such person shall be in respect of the accusation of him committing the non-bailable offence or cognizable offence and therefore the courts having competent jurisdiction shall direct that within the event of the arrest the person shall be released.

Following conditions are imposed on the person seeking the anticipatory bail by the courts having competent jurisdiction

1. It is the duty of the person to seem or make himself available whenever required by the police officials for the investigation. 2. He must not induce or threat for dissuading him from disclosing facts of the case. 3. The applicant shall not go outside the territory of India without taking the prior permission of the court. 4. Or if the following conditions stated in point one and two are fulfilled and such person is ready to give bail, he should be released from custody subject.

Case- Amiya Kumar v. state of west Bengal 1978 Cri.LJ 288

In the instant case, it was held that section 438 of the code empowers both the high court and the session’s court to grant the anticipatory bail. Both the high court and the Sessions court have the competency to grant this bail. If the Sessions court rejects the petition filed by the applicant for the anticipatory bail then he can’t file the petition for the same in the high court. Case – D.R. Naik v. the State of Maharashtra, 1989 Cri.LJ 252

In the instant case, it had been held that if an individual files an application for anticipatory bail and it’s rejected by the sessions court, this may not put the bar over the person filing the petition to approach the supreme court . But if the person first approaches the high court and the petition filed by him gets rejected, then he can’t approach the session’s court for filing the petition on the same ground. Malimath Committee Report

The Malimath committee gave its observation regarding the supply of anticipatory bail. They stated that the provision of section 438 is often misused by the people. Such misuse of the provision is illegal. The committee after the subsequent observation suggested two conditions or requirements for the aim of retaining the supply.

The following conditions are as follows

1. Before granting the anticipatory bail the court shall hear the general public or the govt prosecutor 2.When an individual files a petition of anticipatory bail it must be heard by a court having competent jurisdiction.

Section 50 of the code talks about the information to the arrested person regarding bail. As many people arrested are not aware of this.