INTRODUCTION

Every citizen of India has a fundamental right to freedom guaranteed under 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 term bail is not defined under Criminal Procedure Code 1973. Bail is a

kind of security which is given by the accused to the court that he will attend the proceedings

against the accusations made upon him and include personal bond and bail bond. The two

authorities that can grant bail are police and courts. The basic and fundamental object of bail

is to ensure the attendance of accused at the trial before court, otherwise if not provided the

accused will abscond all the proceedings.

 The sections from 436 to section 439 deal with the provisions of bail. Bail when and

when not be granted:-

The code of criminal procedure, 1973 has defined the term bailable offence by stating that an

offence which is shown as bailable in the first schedule, or which is made bailable by any

other law for the time being in force; and the term non-bailable offence states the meaning

that any other offence other than bailable offence. The distinction between bailable and non-

bailable offences is based on the gravity of the offence, danger of accused absconding,

tampering of evidence, previous conduct, health, age and sex of the accused person. Though

the schedule for classification of offences as bailable or non- bailable offences, only

classifies offences into bailable and non bailable offences. Its imperative on the authorities

concern to grant bail to the accused in bailable offences. The purpose of bail is to ensure the

appearance of accused before the court whenever required but in certain cases, granting bail

is not required.

The basic rules of grant or denial of bail may simply be summarized as:

There are only two kinds of offences bailable and non bailable offences,

 In case of bailable offences section 436 CRPC it is the right of accused to demand bail as a

matter of right as under Article 21 and be granted bail.

 The certain basic criteria for the courts while exercising their judicial discretion for grant or

denial of bail in case of non bailable offences has been laid down in section 437 Criminal

Procedure Code 1973, in the cases related to non-bailable offences. Some of these criteria

include the nature of offence, past criminal records and probability of guilt.

 Section 438 CRPC deals with anticipatory bail in cases where there is an apprehension to

arrest.

 There are other factors also which are to be kept in mind by the hon’ble court before granting
 of bail like the possibility of threatening of witness, possibility of evidence being tampered

etc.

In Free Legal Aid Committee, Jamshedpur v. State Of Bihar1, the Supreme Court ruled that

in a session’s case if the magistrate has granted bail, the accused need not seek bail from the

court of sessions.

There rose an interesting question in Haji Mohamed Wasim v. State of U.P2. before the

Allahabad High Court questioning the validity of bail granted by police officers. In the instant

case, the accused on bail which was granted by police preferred to not appear before the court.

Hence here the trial court issued a non-bailable warrant which was then challenged by the

accused under section 482. It was hence ruled by the court that he has to take fresh bail from

trial court.

Bail by Police:-

The Police Officer power have a power, to release a person on bail who has been accused of

an offence and is in his custody, is categorized under the two heads:

(A)When without any warrant the arrest is made and; (B) When with the issuance of warrant of

arrest is made .

The Power to grant bail by police has been conferred upon them by the virtue of the

following sections:

1) 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 are controlled by directions endorsed

under section 71 of the code. It is under section 81 of commission of a bailable offence even

when no direction to such effect has been given in the warrant. In case of non- bailable

offence the endorsement on the warrant has to be strictly followed. Endorsement on warrant

however should be by name.

1
(1982) 3 SCC 378
2
1992 CriLJ 1299
 Bail when arrest made without warrant

(i) Bail under section 42 Cr. P.C.:

Section 42 Cr. P.C. 1973 can be invoked when the offender refuses to give name and address

or gives a name and address which the police officer considers to be false. If those particulars

are within the knowledge of the police officer, neither the question of arrest nor the question

of bail will arise. As soon as name and address has been ascertained the police officer can not

detain him, if he is willing to execute the necessary bonds.

The power to arrest and to release on bail can be exercised by any Police Officer not

necessarily by an officer-in-charge of the Police station because this section has been enacted

to provide for a particular non cognizable offence does not put any restrictions on the power

of a Police Officer to enlarge a person on bail after the correct name and residence have been

ascertained.

(ii) Bail under section 43 Cr. P.C.:

The Code of Criminal Procedure under section 43 provides for the arrest of person by a

private person and procedure on such arrest. If a private person other then the police officer

thinks that a person has committed an offence which is non-cognizable offence. That private

person can arrest such person, after the arrest has been made the arrested person should be,

without unnecessary delay handed over to a police officer, or in his absence, be brought to the

nearest police station. The question of bail will depend upon what opinion the police officer

forms about the person brought before him. If there is no sufficient ground to believe that the

arrested person has committed any offence, he shall at once be released.

If there is reason to believe that such person comes under the provisions of section 41, a

police officer shall re-arrest him and then the normal procedure of investigation,
 determination of the question whether a non- bailable case is made out or not and the

desirability of release on bail etc. will arise. If there is reason to believe that he has committed

a non- cognizable offence he shall be released as soon as his name and residence have been

ascertained as provided under section 42 Criminal Procedure Code.

A chowkidar, not being a police officer is not entitled to receive a person arrested under this

section. But where a chowkidar is a police officer as under the Chota Nagpur Rural Police

Act, (Act I of 1914) he can received a person arrested under section 59, Criminal Procedure

Code (old) and detain him in custody.

iii) Bail under sections 56, 57 and 59 Cr. P.C.:

Section 56 mandates that a police officer affecting an arrest without

admit the arrested offender to bail, but power of the police officer is subject to the provisions

herein contained as to bail. Section 56 of the new Code corresponds to section 60 of the old

Code.

Section 57 provides that person arrested not to be detained more than twenty four hours. The

intention of the legislature is that an accused person should be brought before a Magistrate

competent to try or commit with as little delay as possible. Section 57 is pointer to the

intendment to uphold liberty and to restrict to the minimum curtailment of liberty.

It has been stated in Section 59 of the Code that any person who has been arrested by a police

officer shall be discharged only by his own bond, or on bail, or under special order of a

magistrate.

iv) Bail under section 169 Cr. P.C.:

The section refers to the grant of bail not at the start but only on the making of an

investigation under Chapter XII of the Code. Till then bail is not authorized under the

provisions of this section. The power to release on bail a person in custody vests in officer in

charge of the police station or the police officer making the investigation. An officer-in-
 charge of the Police Station or an investigating officer cannot release a person on bail if he

has appeared as an accused before the magistrate on the basis of a complaint in respect of the

incident which the police is also investigating. If the officer in charge of the police station or

the investigating officer takes a bond from the accused for his appearance before the police

it will be considered as a bail bond. The magistrate may either discharge the bond or order the

re-arrest of the accused. The powers of an officer in charge of the police station on the

investigating officer to admit a person to bail are not hampered by the nature of offence of

which he is accused.

v) Bail under section 170 Cr. P.C. :

Under this section the authority to grant bail accrues to an officer in charge of the police

station, “if the offence is bailable”. It is submitted that a station officer is empowered to grant

bail if investigation has disclosed the offence to be bailable and it is immaterial what the

initial accusation against him was. Under the imperative provisions of section 170, therefore,

an officer in charge of the police station has either to forward the accused in custody or if the

offence is bailable or on investigation found to be bailable, to accept bail for his appearance

before a magistrate, he cannot entertain an application for the withdrawal of a complaint and,

therefore, he cannot be discharged an accused. The power to release on bail a person accused

of a non-bailable offence is conferred upon only one class of police officers, namely an

officer-in- charge of the Police Station under section 437 sub Section (I).

When an officer in charge admits an accused to bail, it is mandatory for him to record the

reasons or special reasons in the case diary and preserve the bail bonds until they are

discharged either by the appearance of the accused in court or by the order of a competent

court. For the purpose of bail in non-bailable offence, the Legislature has classified them

under two heads:

(1) those which are punishable with death or imprisonment for life;
 (2) those which are not so punishable.

The age or sex or sickness or infirmity of the accused cannot be considered by a police officer

for the purpose of granting bail. These matters may be taken in view by a court only. An

officer in-charge of the police station may grant bail only when there are no reasonable

grounds for believing that the accused has committed a non-bailable offence or when the non-

bailable offence complained of is not punishable with death or life imprisonment.

Bail by Police when arrest made in pursuance of warrant:-

(i) The relevant provisions of Code of Procedure in connection with above mentioned kind of

Bail provided under section 71 Cr. P.C.:

The relevant provisions of Code of Procedure in connection with above heading are confined

in section 71 and 81 of Criminal Procedure Code. It is a matter entirely in the discretion of the

court issuing a warrant under this section to give a direction for the release of the arrested

person on bail or not. Even in bailable offence, a court may not give such direction. In the

case of Lachhmi Narain V. Emperor3, the above has been stated

When a person who is to be arrested is not arrested until the date on which he has to attend

the court, the direction regarding the taking of bail lapses.

(ii) Bail under section 80 & 81 Cr. P.C. :

When a warrant of arrest is executed outside the district in which it was issued any police

officer who is not a District Superintendent of police or the Commissioner of Police may

release an arrested person according to the directions contained in the endorsement. But a

District Superintendent of Police, the Commissioner of Police in presidency town with in the

local limits of whose jurisdiction the arrest was made shall release on bail. The heading are

confined in section 71 and 81 of Criminal Procedure Code.

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A police officer cannot release a person on bail simply because the arrested person is accused

of a bailable offence. He has to comply strictly with the contents of the endorsement if any.

Bail to Lunatics :

Section 330, Cr. P.C. Bail cannot be claimed as a matter of right for persons of unsound mind.

Courts have been vested with great powers and wide discretion in the matter of grant or

refusal of bail. A Magistrate may release a person of unsound mind on bail even though he is

charged of an offence of the most heinous type and may refuse bail in bailable case if he is of

the opinion that bail should not be allowed. An accused of unsound mind may be released on

security, irrespective of the offence with which he is charged not only on the finding by the

court that the accused is of unsound mind, but also prior to such finding, during the pendency

of the inquiry into his state of mind [section 328 (2)].

Bail for Contempt in presence of Court under section 346 of Cr. P.C.

When an offence, as is described in section 175, Section 178, 179, 180 or 228 of I.P.C. is

committed in the view or presence of a Criminal Court and that court, instead of proceeding

under section 345, Cr.P.C., considers that the person accused of any of the offences referred

to above should be imprisoned otherwise than in default of fine, or that a fine exceeding two

hundred rupees should be imposed upon him, then the court after it has recorded the facts

constituting the offence and the statement of the accused, may forward the case to a

Magistrate having jurisdiction to try the same, and for the appearance of such accused

person may require security to be given before such magistrate or shall forward such person

in against has not to apply for bail to the court. It is the discretion of the court forwarding the

complaint either to ensure the attendance of the accused by demanding a security for his

appearance before the transferee Magistrate or it may just inform the accused of the date on

which he has to appear before that court. He cannot be taken in custody merely because he
has not applied for bail. He can be taken in custody if security is demanded from him and he

does not give sufficient security.

Bail to First offender under section 360, Cr. P.C.

Sub-section (1) of section 360, Criminal Procedure Code, deals with the power of a court or a

Magistrate of the second class specially empowered by the State Government in this behalf, to

release a convicted offender on his entering into a bond, with or without sureties, to appear

and receive sentence when called upon during such period (not exceeding three years) as the

Magistrate may direct, and in the mean time to keep the peace and be of good behavior. The

Magistrate thus has discretion either to punish the offender with imprisonment or release him

on probation of good conduct.

POST CONVICTION AND PRE APPEAL BAIL UNDER SECTION 389 CRPC

High Court can exercise this power when appeal lies to Sessions Court. So far as the court

convicting the accused is concerned, the court is bound to admit the accused to bail pending

order passed by appellate court or High Court when (a) the accused was already on bail and

has been sentenced to imprisonment for a term not exceeding three years; or (b) when the

offence was a bailable one. Even on fulfillment of the condition court on convicting the

accused may refuse bail if there exists a special reason. Under this section an intention to

present an appeal on the part of the convicted person is sufficient reason to justify the release

of a convicted person on bail. It may further be noted that an order of bail under this section is

for a limited period only and is applicable only to “convicted” persons and not to those who

are bound over.

Bail while making reference under section 395 Cr. P.C. :

When a Magistrate makes a reference under section 395, CrPC, to the High Court for its

opinion on the validity or otherwise of any act, Ordinance or Regulation or under any other

section of this act, he may then in such case, pending the High Court’s decision, either

commit the accused to jail or release him on bail to appear when called upon. The Magistrate

will exercise his discretion in favour of the accused or against him according to the

seriousness of the charge and severity of punishment provided in that Act, Ordinance or

Regulation.

Bail During Revision Under Section 397 Cr. P.C. :

The Sessions Court and the High Court in exercise of revision power can call for records of

inferior courts for the purpose of satisfying himself as to the correctness, legality or

propriety of any finding, sentence or order recorded or passed as to the regularity of any

proceeding as such suspended and, in case the accused is in confinement, then he may be

released either on bail or on his own bond pending the examination of the record.

Bail under Section 437 Cr. P. C. Section 437:

It deals with bail in bailable offence. Grant of bail is a rule whereas refusal in this context is

an exception. A person accused of bailable offence has the right to be released on bail.

Bail in cases of bailable offences is cumpolsory bail. It is a discretionary option to grant a

bail to a person accused of bailable offence. When a person who is suspected of committing a

bailable offence is produced before a Magistrate and he is prepared to give bail, Magistrate

has to release him on bail without having any other option.

Bail for non-bailable Offence: Under Section 437 Cr. P. C.:

The provisions of section 437 empower two authorities to consider the question of bail,

namely-
(1) a “court” which includes a High Court and a Court of Session, and an officer-in-charge of the

police station who has arrested or detained without warrant a person accused or suspected of

the commission of a non-bailable offence. Although this section deals with the power or

discretion of a court as well as a police officer in charge of police station to grant bail in non-

bailable offences it has also laid down certain restrictions on the power of a police officer to

grant bail and certain rights of an accused person to obtain bail when he is being tried by a

Magistrate.

Criteria for Judicial Discretion to Grant or Refuse Bail

This judicial discretion has to answer one of the most important fundamental rights

guaranteed under Article 21 of the Constitution, namely, personal liberty. Grant of bail may

he gifting personal liberty to a person who has been arrested or who is anticipating an

imminent arrest. On the other hand, refusal of bail implies sending that person to jail, or to

police custody, as the case may be, and thereby depriving that person of his personal liberty.

In fact, the question of “bail or jail?” has a bearing not only on the individual concerned but

also on the society in general, for, an innocent person sent to jail may not augur well for a just

society whereas a dangerous and hardened criminal released on bail can do more harm to the

society by way of destroying the evidence, threatening the witnesses, evading the judicial

process or may be by committing more offences. The importance of this judicial discretion

cannot therefore be understated.

CONSIDERATIONS AT THE TIME OF GRANTING BAIL

At the time of deciding the application seeking bail, the Court should look at the prima facie

material available and should not go into the merits of the case by appreciation of evidence.

At the time of grant or denial of bail in respect of a non-bailable offence, the primary

consideration is the nature and gravity of the offence. While adjudicating bail applications, the

Courts should only go into the question of prima facie case established for granting bail. The
Court 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 Supreme Court in the matter of State of Maharashtra vs.

Sitaram Popat Vital4 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.

At times certain matters require investigation for the Court to effectively decide upon the bail

application, like: (i) whether there is or is not a reasonable ground for believing that the

applicant has committed the offence alleged against him; (ii) the nature and gravity of the

charge; (iii) the severity of the punishment which might fall in the particular circumstances in

case of a conviction; (iv) the likelihood of the applicant absconding, if released on bail; (v) the

character, means, standing and status of the applicant; (vi) the likelihood of the offence being

continued or repeated on the assumption that the accused is guilty of having committed that

offence in the past; (vii) the likelihood of the witnesses being tampered with; (viii)

opportunity of the applicant to prepare his defense on merits. The Hon'ble Supreme Court in

the matter of Ram Govind Upadhyay vs. Sudarshan Singh and Ors5 while considering various

factors for grant of bail has analyzed the scenario where the applicant has already been in

custody and the trial is not likely to conclude for some time, which can be characterized as

4
AIR 2004 SC 4258
5
AIR 2002 SC1475
unreasonable, but it is not necessary that bail shall be granted. The factors such as, previous

conduct and behavior of the accused in the Court, the period of detention of the accused and

health, age and sex of the accused also may be considered at the time of grant of bail. The

Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors 6, has

held that, "the condition of not releasing the person on bail charged with an offence

punishable with death or imprisonment for life shall not be applicable if such person is under

the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be

imposed." 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.

It is essential that the Courts should provide investigating authorities with reasonable time to

carry out their investigations. It is equally necessary that the Courts strike a correct balance

between this requirement and the equally compelling consideration that a citizen's liberty

cannot be curtailed unless the facts and circumstances completely justify it. Upon the literal

interpretation of the Section 437 of Code of Criminal Procedure, it is observed that the

legislature has used the words "reasonable grounds for believing" instead of "evidence". Thus,

the Court has merely to satisfy as to whether the case against the accused is genuine and

whether there is prima facie evidence to support the charge.

It is true that Article 21 is of great importance because it enshrines the fundamental right to

individual liberty, but at the same time a balance has to be struck between the right to

individual liberty and the interest of society. No right can be absolute and reasonable

restrictions can be placed on them. The Court, at the time of adjudicating bail applications,

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AIR 2001 SC 1444
after taking such factors into account, is at liberty to impose reasonable conditions to be

abided by the applicant.

IMPOSITION OF CONDITIONS

Section 437 of the Code of Criminal Procedure empowers the Court to impose conditions at

the time of granting bail. The Court may, while granting bail to a person, ask him to surrender

his passport as stated in Hazarilal vs. Rameshwar Prasad7. The accused cannot be subjected

to any condition which is not pragmatic and is unfair. It is the duty of the Court to ensure that

the condition imposed on the accused is in consonance with the intendment and provisions of

the sections and not onerous. Under Section 437(3) the Court has got the discretion to impose

certain conditions, on the person accused or suspected of the commission of an offence

punishable with imprisonment, such as - (a) that such person shall attend in accordance with

the conditions of the bond executed,(b) that such person shall not commit an offence similar

to the offence of which he is accused, or suspected, of the commission of which he is

suspected, and(c) that such person shall not directly or indirectly make any inducement, threat

or promise to any person acquainted with the facts of the case so as to dissuade him from

disclosing such facts to the Court or to any police officer or tamper with the evidence. The

Court may also impose, in the interests of justice, such other conditions as it considers

necessary. In order to make the provision stringent and to see that the person on bail does not

interfere with the investigations or intimidate witnesses, sub-section (3) has been amended to

specify certain conditions8, which carry mandatory effect. The conditions as such imposed at

the time for granting bail have to be reasonable. The Hon'ble Supreme Court in the matter of

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AIR1972SC484
8
Cr. PC (Amendment)Act, 2005 (25 of 2005)
Sumit Mehta vs. State of NCT of Delhi 9 held, "The words 'any condition' used in the provision

should not be regarded as conferring absolute power on a Court of law to impose any

condition that it chooses to impose. Any condition has to be interpreted as a reasonable

condition acceptable in the facts permissible in the circumstance and effective in the

pragmatic sense and should not defeat the order of grant of bail."In the said case, the Apex

Court set aside the decision of High Court of Delhi wherein the Bail Applicant was directed to

deposit an amount of Rs. 1,00,00,000/- (One Crore) in fixed deposit in the name of the

complainant in the nationalized bank and to keep the FDR with the Investigating Officer. The

Hon'ble Supreme Court in the matter of Sheikh Ayub vs. State of M.P10, while adjudicating

upon the reasonability of the imposed bail conditions held, "By the impugned order, the

Appellant was granted bail and directed to deposit Rs.2,50,000/- which is alleged to be the

amount appropriated by the Appellant. There was also condition for furnishing surety bond

for Rs. 50,000/-. In the circumstances of the case, direction to deposit Rs. 2,50,000/- was not

warranted, as part of the conditions for granting bail." The onus is upon the Court to consider

the entire facts and circumstances of the case before imposing the conditions for granting the

bail. The Apex Court in the matter of Ramathal and others vs. Inspector of Police and

Another11, held that the High Court of Punjab and Haryana, had not taken into account the

entire facts of the case in proper perspective while adjudicating, since the conditions imposed

by the High Court asking the applicant to deposit a sum of Rs. 32,00,000/- (Thirty Two Lacs)

was unreasonable and onerous, and beyond the means and power of the appellants, hence and

the matter was remitted back to the High Court.

9
(2013) 15 SCC570

10
(2004) 13 SCC 457

11
(2009) 12 SCC 721
CONCLUSION

The primary objective of the provisions providing for the bail should not be to detain and

arrest an accused person but to ensure his appearance at the time of trial and to make sure if

the accused is held guilty, he is available to suffer the consequence of the offence as such

committed, in terms of punishment in accordance with the law. It would be unjust and unfair

to deprive the alleged accused of his liberty during the pendency of the criminal proceeding

against him. The release on bail upon appropriate considerations and imposition of reasonable

conditions is significant not only to the accused, and his family members who might be

dependent upon him but also the society large, hence the Court is duty bound to contemplate

the facts and circumstances prevailing in the matter and strike a balance between

considerations and imposition of the reasonable conditions and then pass the appropriate

order.