The document summarizes key aspects of bail under Indian criminal law. It discusses: 1) The right to bail for bailable and non-bailable offenses, including the conditions that must be met for bail in non-bailable cases. 2) The types of bail available, including personal bonds, bonds with sureties, and anticipatory bail. 3) Circumstances where bail is mandatory and the powers of police to grant bail for arrests with and without a warrant.

1. CONDITIONAL RELEASE OF
ACCUSED ON BOND
Presented by
Saket Kesharwani
Roll No. 15
L.L.M 1st semester

2. RIGHT TO BAIL UNDER INDIAN CRIMINAL LAW
• In the Indian legal system, the procedure of bail is provided under section 436 in
the Criminal Procedure Code. Bail has not been defined in the code although the
offences are classified as bailable and non-bailable. In the case of bailable
offences, the grant of bail is a matter of course. It may be given either by the
police-officer in charge of a police station having the accused in his custody or by
the court.
• The release may be ordered on the accused executing a bond and even without
sureties . In the case of non-bailable offence, the accused may be released on bail
but no bail can be granted where the accused appears on reasonable grounds to
be guilty of an offence punishable either with death or with imprisonment for life.
• As soon as reasonable grounds for the guilt cease to appear, the accused is
entitled to be released on bail or on his own recognizance; he can also be
released, for similar reasons between the close of the case and delivery of
judgment. When a person is released on bail the order with reasons therefore,
should be in writing.
• Further, sections 436 to 450 set out the provisions for the grant of bail and bonds
in criminal cases. The amount of security that is to be paid by the accused to
secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of
the court or the police officer to put a monetary cap on the bond.

3. WHAT ARE THE CONDITIONS FOR GRANT OF BAIL
• Before any person is released on bail, a bond for such sum of money as the police
officer or Court thinks sufficient shall be executed by such person or sureties.
• Such person shall attend at the time and place mentioned in the bond and shall
continue to attend until otherwise directed by the police officer or the Court. It is
done to secure the presence of accused at the trial while allowing the accused his
liberty and protecting him from unnecessary detention.
• Where any condition is imposed for the release of any person on bail, the bond
shall also contain that condition. When deciding to grant bail, any amount of bond,
the number of sureties or conditions imposed should only be sufficient to ensure
the accused attend the next hearing.
WHAT ARE THE TYPES OF BAIL AVAILABLE
• A personal bond with or without security means that the person is released on his
personal undertaking that he would regularly attend the Court and in case of
default would forfeit to the government a sum of money. Such a personal bond is
granted on taking liberal interpretation of the law.
• A bond with surety which may be with or without security. Surety means the third
person who is made responsible for the obligation of the accused and he would be
made to pay the bail amount on the breach of the bail conditions by the accused.

4. POWERS OF POLICE TO GRANT BAIL
The power of a Police Officer, to release on bail a person accused of an offence and taken
into custody by him, may be divided under two heads:
(a) when the arrest was made without any warrant; and
(b) when the arrest was made in pursuance of warrant of arrest.
Power of police to grant bail for the arrest made without warrant may be
gathered from sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of the
Code.
The powers of police to grant bail under head (b) are controlled by
directions endorsed under Section 71 of the Code. Section 81 of the Code however, allows
a police officer to take bail when the person arrested or produced before him has been
accused of the commission of a bailable offence even though warrant of arrest does not
contain any direction to that effect.
• In Monit Malhotra V. State of Rajasthan , 1991 Cr. L. J. 806 (Raj.) the accused was
granted bail under section 436 by the police. But when he appeared before the court he
was advised to take bail from the court. He challenged the orders in the Rajasthan High
Court which ruled that it is not necessary for an accused to get bail granted by the court
if he has already been granted bail by the police. The court drew support from the
reasoning in the Supreme Court decision in Free Legal Aid Committee, Jamshedpur Vs.
State of Bihar, wherein it was ruled that in a sessions case if the magistrate has granted
bail, the accused need not seek bail from the court of sessions.

5. HAJI MOHAMED WASIM VS STATE OF U.P.
• An interesting question arose in Haji Mohamed Wasim v. State of U.P., 192
Cr. L. J. 129. before the Allahabad High Court as to the validity of bail
granted by police officers. In this case the accused who was on bail
granted by police preferred not to appear before the court. The trial court
issued a non-bailable warrant which came to be challenged by the accused
under section 482. The court ruled that he has to take fresh bail from trial
court.
The Court reasoned that the power of a police officer in-
charge of a police station to grant bail and the bail granted by him comes
to an end with the conclusion of the investigation except in cases where
the sufficient evidence is only that of a bailable offence, in which
eventually he can take security for appearance of the accused before the
magistrate on a day fixed or from day to day until otherwise directed. No
parity can be claimed with an order passed by magistrate in view of
enabling provision contained in clause (b) of section 209 under which the
committal Magistrate has ben empowered to grant bail until conclusion of
trail, which power was otherwise restricted to grant of bail by him during
pendency of committal proceedings under clause (a) of section 209.

6. Circumstances in which release on bail
is mandatory
• In the case of bailable offence the person accused has an
indispensable right to grant of bail subject of course to
sureties being offered, if sureties are considered necessary
• The accused have the right to be released on bail if
investigations are not completed within the prescribed
number of days
• If there is no reasonable ground to believe that the accused is
guilty of a non-baialble offence but sufficient grounds for
further enquiry
• If the trial is not concluded within 60 days
• Release on bail after conclusion of trial but before the
judgment is delivered

7. When bail is available in non bailable offences
Section 437 of the Code provides for release on bail in cases of non-bailable
offences. In such cases, bail is not a matter of right. Any officer or court releasing
any person on bail in a case of non-bailable offence is required to record in writing
his/its reasons for doing so. Court has sufficient discretion to deny or to grant bail.
Further cases often arise under S. 437, where though the court regards the case as
fit for the grant of bail, it regards imposition of certain conditions as necessary in the
circumstances. It will be noticed that
• The power to impose conditions has been given to the court and not to any
police officer.
• The power to impose conditions can only be exercised –
(I) Where the offence is punishable with the imprisonment which may extend to
seven years or more or
(II) Where the offence is one under Chapter VI (Offences against the State),
Chapter XVI (offences against the human body), or Chapter XVII (offences against
the property) of I.P.C, or
(III) Where the offence is one of the abetment of or conspiracy to or attempt to
commit any such offence as mentioned above in (i) and (ii).

8. Anticipatory bail
There is a provision of anticipatory bail under section 438 of the Code. The difference
between ordinary bail and anticipatory bail is that whereas the former is granted
after arrest, the latter is given in anticipation of arrest. The power to grant this bail
rests only in High court and Sessions court. The person seeking it must satisfy the
court of genuine apprehension of his arrest. It cannot be claimed as a matter of right.
While granting bail, the court may also impose such conditions and give directions as
it deems fit. Once granted bail, the accused cannot be arrested till he exhausts his
right to appeal in the matter. This provision provides an effective check against the
abuse and arbitrary power of arrest.
• In the landmark case of Gurbaksh Singh Sibbia v. State of Punjab, the Hon'ble
Supreme Court has laid down that the discretion granted upon the High Court or
Session Court is very wide and that the limitations imposed in Section 437 are not
relevant here. However the discretion granted is to exercised with care. Specific
events and facts must be laid before the Court by the accused in order to get an
anticipatory bail. The Court while granting bail may impose restrictions so as to
balance out an individual’s right and investigational rights. It is only applicable
before the stage of arrest of the accused. Such a bail order is effective till the
conclusion of the trial.

9. • In the case of Mazafar Hussain V. State of Orissa 1990 Cri LJ 1485 (Ori) the applicant
was a minister of the state and there was the prima facie case that he had fired a
pistol inside a polling booth. He was refused the anticipatory bail on the ground
that there was a likelihood that the confidence of the public being shaken as the
investigation may be interfered with if the application was allowed.
• In the case of Salauddin Abdul v. State of Maharashtra, 1998 SCC (Cri) 406 the Court
held that the order under Section 438 of the code must be of a limited duration
only and ordinarily on the expiration of that period, the Court granting anticipatory
bail must leave it to the regular court to deal with the matter on appreciation of
evidence placed before it after the investigation has made progress on the charge-
sheet submitted. The essence of the judgment is that anticipatory bail must be
granted only till the challan is filled.
CANCELLATION OF BAIL
Even when a bail is granted, the Court granting such bail has the power under
the Code to cancel such bail on reasonable grounds. Cancellation of bail necessarily
involves the review of a decision already made and can by and large be permitted only
if, by reason of supervening circumstances it would no longer be conducive to a fair
trail to allow the accused to retain his freedom during the trial

10. MAIN ISSUES REGARDING GRANT OF
BAIL
• Anticipatory bail may enable the accused to tamper with evidence
against him.
• The police cannot get remand under Section 167 Crpc, if the
offence is related to property.
• It has a demoralizing effect on the victim who feels unsafe and
insecure with the free movements of the accused.
• It obstructs impartial investigation by the police.
• There are thousands of under trial prisoners lodged in Indian
prisons today include many who are unable to secure their release
before trial because of their inability to produce sufficient financial
guarantee for their appearance.

11. By the CrPC (Amendment) Act, 2005, Sec 436(1) –
• Where a person is unable to give bail within a week of the date of his arrest, it
shall be a sufficient ground for the officer or the Court to presume that he is an
indigent person for the purposes of this proviso.
• The new provision Section 436A was introduced in order to solve the problems of
‘under trials’ who were languishing in jails as they will now be given an
opportunity to be set free instead of endlessly waiting for their trial to take place.
According to section, a person who has undergone detention for a period
extending up to half of the maximum period of imprisonment imposed for a
particular offense, shall be released on her/his personal bond with or without
sureties.
Clearly, it seems that the amendment was made to facilitate the indigent
person in securing bail and to reduce the number of under trials in indian jails. However, it is
still to achieve its objective of helping the indigents secure bail without monetary obligation as
there has been no judgment based on this proviso.

12. • In a recent landmark order in Bhim Singh vs Union of India, the Supreme Court
directed the fast-tracking of criminal cases, and the release of undertrial prisoners
who had completed at least half their maximum prison term pursuant to Section
436A of the Code of Criminal Procedure (CrPC). Bringing attention to the plight of
those languishing in prison while awaiting trial, the court’s order coincides with the
recent government’s mandate to decongest prisons by releasing under trials.
But releasing under trials is still a short term solution. Pre trial
detention is still a real problem. According to the statistics revealed by the National
Crime Records Bureau more than of 66% of India’s prisoner are under trials,
individuals as yet not held to be guilty by any Court of law.. Of these 2,54,857
undertrials, more than 2,000 have been in prison for over five years. The average
occupancy rate in India’s prisons is 112.2 per cent, with the situation particularly
dire in states such as Chhattisgarh (252.6 per cent) and Delhi (193.8 per cent).
These under trials is languishing in jails due to inadequate legal aid and a bail
system linked with monetary obligation. The single largest tragedy is the continued
detention of individuals accused of bailable offences, where bail is a matter of right.

13. RECOMMENDATIONS
• Witness protection laws must be made in order to prevent the tampering of
evidence by the accused. For example a special force could be setup who would
have necessary training and facilities for ensuring protection of witnesses. Once
the protection could be ensured, obtaining bail by the habitual criminals would
be much more difficult and administration of criminal justice would be
immensely strengthened.
• Special investigation cell should be developed with adequate legal training
within the police personnel. They would be attached with a Police Station, but
their works would be regularly monitored by designated magistrates or by any
other appropriate authority
• Monitoring over the sub ordinate Judges must be strengthen, particularly in case
where bail is granted to a person accused of serious offences which are non-
bailable.
• The High Court and the Session Court should exercise their revision jurisdiction
more often to monitor and inquire into the appropriateness of the bail granted
by the subordinate judges to well known criminals.
• There are many other measures which can contribute to the strengthening of
present bail system such as strengthening legal aid, creation of Judiciary
Ombudsman, reform in case and Court management system.

14. CONCLUSION
• On the basis of the above discussion it may be concluded that while
granting bail there is a need to create balance between the rights of
the accused to have liberty and the public’s right to be protected
from repeated offender or those whilst on bail. Bail is a
fundamental issue in administration of criminal justice system.
Although bail ensures avoidance of unnecessary sufferings of
presumably innocent person, on the other hand it may hamper the
administration of justice by enabling the accused person to abscond
to threaten the victims and witnesses. Therefore to reform the
provisions of bail steps should be taken towards ensuring early
identification and speedy trial of exemplary punishment for
instituting false cases. An awareness programme against false cases
should also be undertaken for reducing and preventing institution
of such cases. Otherwise the use of bail process against weaker
section of society might flourish and that would jeopardize the
objective of the aforesaid reforms to practice bail.