The document discusses the concept of bail in Indian criminal jurisprudence. It provides definitions of bail and discusses the provisions related to bail in the Code of Criminal Procedure. It notes that bail is meant to ensure the appearance of the accused person in court. The document outlines the factors considered for granting bail like the nature of the offense and evidence. It discusses the powers of High Courts and Sessions Courts to grant bail. It also examines the relationship between bail provisions and Article 21 of the Indian Constitution regarding personal liberty. Important case laws related to bail are also summarized.

1. Concept of Bail
• “The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all
of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial
process”. – Justice V.R. Krishna Iyer in
Gudikanti Narasimhulu case (1977).
• The concept of bail, which is a basic part of the Indian criminal jurisprudence and it is well
recognized principle among all the judicial systems of the world. Bail, in law, means procurement
of release from prison of a person awaiting trial or an appeal, by the deposit of security to
ensure his submission at the required time to legal authority.
• The law lexicon defines bail as the security for the appearance of the accused person on which
he is released pending trial or investigation. What is contemplated by bail is to "procure the
release of a person from legal custody, by undertaking that he/she shall appear at the time and
place designated and submit him/herself to the jurisdiction and judgment of the court”.

2. [
• The Criminal Procedure Code, 1973, does not define bail, although the terms bailable
offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: "
Bailable offence means an offence which is shown as bailable in the First Schedule or
which is made bailable by any other law for the time being enforce, and non-bailable
offence means any other offence". Further, ss. 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 to put a monetary cap on the bond.

3. • In 2011, The Hon'ble apex court in Sanjay Chandra vs CBI AIR (2012) 1 SCC 40 also opined that :
“The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is
regulated, to a large extent, by the facts and circumstances of each particular case. But at the same
time, right to bail is not to be denied merely because of the sentiments of the community against the
accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to
relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the
accused constructively in the custody of the Court, whether before or after conviction, to assure
that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his
presence is required”.
• Recently, Hon’ble Supreme Court, in Aasu vs. state of Rajastan (Criminal Appeal NO.511 of 2017
Dt.09-03-2017) issued a direction that Bail applications shall be disposed of normally within one
week.

4. Section 439
Special powers of High Court or Court of Session
regarding bail
• 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 sub- section;
(b) that any condition imposed by a Magistrate when releasing any 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.

5. Provided further that the High Court or the Court of Session shall, before granting bail to a
person who is accused of an offence triable under sub-section (3) of section 376 or section
376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the
application for bail to the Public Prosecutor within a period of fifteen days from the date of
receipt of the notice of such application.“**
• (1A) The presence of the informant or any person authorized by him shall be obligatory at the
time of hearing of the application for bail to the person under-sub-section (3) of section 376 or
section 376AB or section 376DA or section 376DB of the Indian Penal Code.“**
• 2. A High Court or Court of Session may direct that any person who has been released on bail
under this Chapter be arrested and commit him to custody.
** - Inserted by the Criminal Law (Amendment) Act, 2018

6. Explanation to section 439 CrPC
• Section 439 reads as “ Special power of High Court or Court of session regarding bail” –
• Where sub-section (1) A high court or court of session-
Under sub-clause (a) states that any person accused of an offence and in custody in a pending
case shall be released on bail and if the offence is of the nature specified in subsection (3) of
section 437 i.e. Offences Against the State (Chapter VI), Offences Affecting the Human Body
(Chapter XVI) and Offence Against Property (Chapter XVII) then may impose any condition
which it considers necessary for the purposes mentioned in that sub- section.
• Under sub-clause (b) states that any condition imposed by a Magistrate when releasing any
person on bail in a pending case be either set aside or modified.

7. • It is further provided that the High Court or the Court of Session shall, before
granting bail to a person who is accused of an offence triable under sub-section (3) of
section 376 (Punishment for commission of rape on woman under sixteen years) or
section 376AB (Punishment for rape on woman under twelve years) or section 376DA
(Punishment for gang rape on woman under sixteen years) or section 376DB
(Punishment for gang rape on woman under twelve years) of the Indian Penal Code,
shall give notice of the application for bail to the Public Prosecutor within a period of
fifteen days from the date of receipt of the notice of such application.“

8. • Where clause (A) of section (1) states that the presence of the informant or any
other person authorized by him shall be obligatory at the time of hearing of the
application for bail to the person under-sub-section (3) of section 376 or section
376AB or section 376DA or section 376DB of the Indian Penal Code.
• Where section (2) states about the cancellation of bail, that the High Court or Court
of Session may direct any person who has been released on bail under this Chapter to
be arrested and to commit him to custody.

9. Explanation to section CrPC
• The powers of the High Court in granting bail are very wide; even so where the offence is non-
bailable, various considerations will have to be taken into account before bail is granted in case
of non-bailable offence.
• Under Section 439(1) of the Code, the High Court can only release the accused in cases pending
anywhere in the State on bail or reduce the amount of bail, but cannot order the arrest or
commitment to custody of any person who has been released on bail by the lower Court but it
can order to arrest the person who had been released on bail under Section 439(2) of the Code.
• In a recent judgment in Sundeep kumar bafna vs. State of maharashtra & anr Criminal
appeal no. 689 of 2014 Hon’ble Supreme Court has held that there are no restrictions on the
High Court or Sessions Court to entertain an application for bail, provided, accused is in custody.
The judgment has put an to end the decades old practice of first filing a regular Bail Application
before a Magistrate having jurisdiction, and get it rejected for the purpose of approaching the
Sessions Court or High Court for bail.

10. • Now, Section 439(2) The Code of Criminal Procedure makes clear provisions for cancellation of
bail and taking accused back in custody. The power of cancellation of bail can be resorted to
broadly in the following two situations:
(i) On merits of a case mainly on the ground of the order granting bail being perverse, or
passed without due application of mind or in violation of any substantive or procedural law; and
(ii) On the ground of misuse of liberty after the grant of bail or other supervening
circumstances.
Bail in the first type of cases can be cancelled by superior courts only, whereas in the second
category of cases bail can be cancelled by the very court which may have granted bail.

11. • Cancellation of bail- certain grounds:
The grounds for cancellation of bail under section 439(2) can be cancelled where the accused
(1) misuses his liberty by indulging in similar criminal activity, (2) interferes with the course of
investigation, (3) attempts to tamper with evidence of witnesses, (4) threatens witnesses or
indulges in similar activities which would hamper smooth investigation, (5) attempts to flee to
another country, (6) attempts to make himself scarce by going underground or becoming
unavailable to the investigating agency, (7) attempts to place himself beyond the reach of his
surety, etc. These grounds are illustrative and not exhaustive.

12. Relation between section 439 CrPC
and Article 21 of the Indian
Constitution
• Article 21 of Indian Constitution: Article 21 of the Indian Constitution, which specifically
states, No person shall be deprived of his life or personal liberty except according to procedure
established by law. Any individual, who violates the law of the land, is bound to face
consequences as per the law and in such a case, his freedom may be restricted depending upon
the gravity of offence as such committed. Every accused who has been frivolously charged with
the allegations of a non-bailable offence is not only entitled to a good defense but also to be
released on bail, by the Court upon taking into various factors such as nature or seriousness of
the offence, the character of the evidence, circumstances which are peculiar to the accused,
reasonable apprehension of the witnesses being tampered with, the larger interests of the
public or the state and similar other factors. It is the solemn duty of the Court to decide the
bail applications at the earliest by a reasoned order, based on the bona fides of the applicant in
light of prevailing facts and circumstances.
The Supreme Court observed that it had time and again stated that bail is the rule and
committal to jail an exception. Refusal of bail is a restriction on the personal liberty of the
individual guaranteed under Article 21 of the Constitution.

13. • When bail is refused, it is a restriction on personal liberty of the individual guaranteed by
Art.21 of the Constitution and therefore such refusal must be rare. Where delays in the
disposal of criminal proceedings take place, the accused ought not to be kept in custody for an
inordinately long time and must be released on bail except when under extremely rare
circumstances it is not possible to do so.
• The right to free legal assistance is an essential element of any reasonable, fair and just
procedure for a person accused of an offence and it must be held implicit in the guarantee of
Article 21. Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within
the language of Article 21 and held that this is a constitutional right of every accused person
who is unable to engage a lawyer and secure legal services on account of reasons such as poverty,
indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an
accused person if the circumstances of the case and the needs of justice so require, provided of
course the accused person does not object to the provision of such lawyer.

14. Important Case Laws
• The Hon'ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital AIR
2004 SC 4258 has stated few factors to be taken into consideration, before granting bail, namely:
i) The nature of accusation and the severity of punishment in case of conviction and the nature of
supporting evidence;
ii) Reasonable apprehension of tampering of the witness or apprehension of threat to the
complainant;
iii) Prima facie satisfaction of the Court in support of the charge.
• In the case of Ram Govind Upadhyay vs. Sudarshan Singh and Ors AIR 2002 SC1475 the Hon'ble
Supreme Court held that while bail is not required, certain circumstances must be considered when
granting bail, such as where the applicant has already been in custody and the trial is not expected to
end for some time, which can be characterized as unreasonable.

15. • The Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors
AIR 2001 SC 1444, has mentioned that other relevant grounds which play a vital role in
deciding the bail application are - the possibility for repetition of crime, the time lag between
the date of occurrence and the conclusion of the trial, illegal detention, and undue delay in the
trial of the case.
• The Supreme Court in Gudikanti Narasimhulu v. Public Prosecutor (1978) 1 SCC 240 : 1978
SCC (Cri) 115, held that after setting out the discipline that the Court is bound to adhere to in
the matter of exercise of judicial discretion in the matter of grant/ refusal of bail, it
observed: An accused party is detained in custody because of his guilt, but because there are
sufficient probable grounds for the charge against him as to make it proper that he should be
tried, and because the detention is necessary to ensure his appearance at trial. It is a very
important element in considering whether the party, if admitted to bail, would appear to take his
trial; and I think that in coming to a determination on that point three elements will generally be
found the most important: the charge, the nature of the evidence by which it is supported, and
the punishment to which the party would be liable if convicted.

16. • The Supreme Court also noticed its earlier judgment in State of U.P. v. Amarmani
Tripathi (2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2), wherein it held that the matters to be
considered in an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had
committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behavior, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with; and
(viii) danger, of course, of justice being thwarted by grant of bail.

17. • In Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179; 1978 SCC (Cr) 41 it was held that
considerations in granting bail which are common both in the case of Ss.437(l) and 439(1), Cr.P.C. Code
are:
(i) the nature and gravity of the circumstances in which the offence is committed;
(ii) the position and the status of the accused with reference to the victim and the witnesses;
(iii) the likelihood of the accused fleeing from justice;
(iv) of repeating the offence;
(v) of jeopardizing his own life being faced with a grim prospect of possible conviction in the case;
(vi) of tampering with witnesses;
(vii) the history of the case as well as of its investigation; and
(viii) other relevant grounds which, in view of so many variable factors, cannot be exhaustively set
out.

18. • In the case of Satish Jaggi v. State of Chattisgarh & Ors. 2008 1 ALT (Crol.) 438 (SC), it was
held by the Supreme Court that at the stage of granting of bail, the Court can only go into the
question of the prima facie case established for granting bail. It cannot go into the question of
credibility and reliability of the witnesses put up by the prosecution. The question of credibility
and reliability of prosecution witnesses can only be tested during the trial.
• The Hon'ble Bombay High Court held in Stefan Mueller v. State of Maharashtra Writ Petition
No.2939 of 2009 dated 23/06/2010 in para no.10, that it is well settled position of law that if the
offence is bailable, the accused is entitled to be released on bail and even where he does not
make an application for bail, it is the responsibility of the concerned police officer, if he has
arrested or detained the accused for a bailable offence, to inform him about his right to be
released on bail. Similarly, it is also settled position of law that where a person accused of
bailable offence appears or is produced before a Magistrate, it is responsibility of such
Magistrate to inform him of his right to be released on bail.

19. • In Sumit v. State of U.P. 2010 Cri.L.J. 1435 (SC), it was held that even if there
are other criminal cases pending, accused should be granted bail.
• Hon'ble Supreme Court in Maulana Mohmmad Amir Rishadi vs. State of U.P. and
another 2012(2) Mh. L. J. (Cri.) 412 held that, merely on the basis of criminal
antecedents, bail cannot be denied.
• In Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 Supreme Court
Cases (Cri) 26., the dictum of Hon'ble Supreme Court was that gravity alone can not
be decisive ground to deny bail.

20. • In Subhash Bahadur @ Upender v The State (N.C.T. Of Delhi), [BAIL APPLN. 3141/2020]
The Delhi High Court was posed with the question of whether an application for a bail under
Section 439 Cr.P.C. would be sufficient for a court to construe that the accused had availed of
his right to be released on bail under the provisions of Section 167(2) of the Cr.P.C. if the
condition stipulated therein were met in the matter.
The bench of the Delhi HC consisting of Hon’ble Mr. Justice Vibhu Bakhru held that, “In the
present case, there is no doubt that the petitioner had applied for being released on bail and
had offered to abide by the terms and conditions of bail. Bearing that in mind, it is at once clear
that the petitioner would be entitled to default bail even though he had not specifically
mentioned the provisions of Section 167(2) of the Cr.PC in his application.

21. CONCLUSION
• Conclusively, the idea of bail is noble idea in criminal jurisprudence. Bail can be
granted to the accused in case of non bailable offences subject to some limitation
and conditions. The idea of bail conveys the meaning that the accused cannot be
presumed to be guilty until his guilt is proved. Provision of bail also brings the noble
idea of personal liberty into existence. The provisions are incorporated with a view
to give effect to the personal liberty mentioned in Indian Constitution.

22. THANK YOU