“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 in a judicial process”. – Justice V.R. Krishna Iyer
Good morning my name is Aastha S Shrivastava and I'm here to give my
presentation on the topic ‘ Provisions of Bail and Bond’
Introduction
The object of arrest and detention of the accused person is primarily to secure
his appearance at the time of trial and to ensure that in case he is found guilty
he is available to receive the sentence.
The provisions regarding the release of the accused person on bail are aimed at
ensuring the presence of accused at his trial but without unreasonably
interfering with his liberty.
Article 21 of the Constitution of India guarantees the protection of life and
personal liberty to all persons. It guarantees the fundamental right to live with
human dignity and personal liberty, which in turn gives us the right to ask for
bail when arrested by any law enforcement authority.
The ‘Bail’ provision is based on the legal principle of “presumption of
innocence” i.e. every person accused of any crime is considered innocent until
proven guilty.
 Meaning and definition of Bail
‘Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver’.1
The term bail has not been defined in the Criminal Procedure Code ( herein
after referred to as CrPc)2 , nevertheless, the word ‘Bail’ has been used in the
Cr.P.C. several times and remains one of the vital concepts of criminal justice
system.
In the case of Govind Prasad v. State of West Bengal, 1975 court stated that
“Bail” has been defined in the Law Lexicon as security for the appearance of
the accused person on giving which he is released . Thus bail does not mean
the person is declared innocent but it simply means that the accused is
released temporarily.
 Meaning of Bond
In the context of bail, bonds refer to the legal instruments, typically in
the form of surety bonds or personal bonds, that are executed to secure
 the release of the accused. These bonds involve financial guarantees and
legal obligations to ensure the accused’s compliance with bail conditions.
 Evolution of the concept of bail and bond
The concept of bail has a long history and deep roots in English and
American law. In medieval England, the custom grew out of the need to
free untried prisoners from disease ridden jails while they were waiting
for the delayed trials conducted by travelling justices. Prisoners were
bailed or delivered, to reputable third parties of their own choosing who
accepted responsibility for assuring their appearance at trial. If the
accused did not appear, his bailor would stand trial in his place.
Eventually it became the practice for property owners who accepted
responsibility for accused persons to forfeit money when their charges
failed to appear for trial from this grew the modern practice of posting a
money bond through a commercial bondsman.
 Objective of Bail
The objective of bail or purpose of bail has been put forth by various
scholars, most of them being on similar lines that firstly It helps assure
reappearance of the accused
And secondly to prevent un-convicted individual from suffering
unnecessary imprisonment
 LEGAL POSITION OF BAIL AND BOND
Chapter 33 (Section 436-450) deals with provisions relating to bail and
bonds. The term ‘Bail’ has not been defined under the Criminal
Procedure Code, 1973. Only the term ‘Bailable Offence’ and ‘Non-
Bailable Offence’ has been defined under Section 2(a) of Cr. PC.

i. Categories of bail
Code provide different kinds of bail :-  Bail in Bailable offence (Section 436) 
Bail in Non bailable offene (section 437)
 Bail in bailable offence [Sec 436]
According to Section 2(a) of CrPC bailable offence means an offence that
is classified as bailable in the First Schedule of the Code, or which is
classified as bailable under any other law. An accused can claim bail as a
matter of right if he is accused of committing a bailable offence. The
police officer or any other authority has no right to reject the bail if the
accused is ready to furnish bail.
 The Hon'ble Supreme Court in Vaman Narain Ghiya v. State Of
Rajasthan 2009 observed The Court has no jurisdiction when granting
bail under section 436 cr.p.c, even to impose any condition except
demanding of security.
By Criminal Procedure (Amendment) Act, 2005 sub-section (1) Section
436 was amended to make a mandatory provision that if the arrested
person is accused of a bailable offense is an indigent and cannot furnish
surety, the courts shall release him on his execution of a bond without
sureties.
 Bail in non bailable offence [ Sec 437]
A non-bailable offence is defined as any offence which is not a bailable
offence. A person accused of a non-bailable offence cannot claim bail as
a right it’s a privilege. A person accused of non-bailable offences can be
granted bail provided the accused does not qualify the following
conditions:

 There are reasonable grounds to believe that he has committed an

offence punishable with death penalty or life imprisonment.
 That the accused has committed a cognizable offence and he had been
previously convicted of an offence punishable with death, imprisonment
for life or imprisonment of seven years or more or if the accused been
convicted on two or more instances of a cognizable and non-bailable
offence.
There are exceptional cases in which law gives special consideration in
favour of cases where the accused is a minor, a woman, a sick person
etc. [Section 437(1) CrPC].
Kalyan Chandra Sarkar vs Rajesh Ranjan: The apex court observed that
the detention of the accused in non-bailable offences could not be
questioned as being violative of Article 21 of the Constitution.
1. Types of bail
 Regular bail
Via this, the court orders the release of a person who is under arrest,
from police custody after paying the amount as bail money. An accused
can apply for regular bail under Section 437 and 439 of CrPC.
 Interim bail
 This is a direct order by the court to provide temporary and short term
bail to the accused until his regular or anticipatory bail application is
pending before the court.
 ANTICIPATORY BAIL
Anticipatory bail means bail in anticipation of an arrest. Any person who
apprehends arrest under a non-bailable offence in India can apply for
Anticipatory Bail under the provisions of section 438 of The Code of
Criminal Procedure,
Anticipatory bail, in contrast to regular bail, enables a person to be
released on bail even prior to an arrest being made
The expression “anticipatory bail” is also not defined in Cr.P.C. However,
the Supreme Court in Balchand Jain v. State of M.P 1977 has
characterized anticipatory bail to mean ‘a bail in anticipation of arrest’.
It has been held in the Gurbaksh Singh Sibbia v. State of Punjab 1980
that s. 438 of Cr.PC was enacted to protect those people who are in fear
by their rivals in false cases to disgrace them or detain them in jail.
 Section 436-A , inserted by the 2005 Amendment
Section 436A deals with the ‘Maximum period for which an undertrial
prisoner can be detained’. In this case, when the accused, during the
investigation, inquiry or trial have already undergone detention for more
than half of the term of conviction. He must be granted bail unless the
offence doesn’t amount to the punishment of death. The said accused
could be released by issuing a personal bond or sureties.
I. Cancellation of Bail
 The settled doctrine by the Supreme Court of India is that ‘Bail is the
rule and jail is an exception’ but if sufficient grounds are established,
the courts are enshrined with powers to cancel the bail of a person.
 The Lower Courts, including those of Magistrates, have the authority to
cancel bail under Section 437(5) of CrPC, whereas the High Court and
Court of Session have the authority under Section 439(2) of the Code.
 The court needs to consider following circumstances before cancellation
of bail:
1. Nature of the offence
2. Violation of bail consideration
3. Risk to justice
4. Public safety
Ramanbhai Mathurbhai Patel vs. State of Gujarat (2000)
 This case reaffirmed the principles for canceling bail, highlighting
that the grounds for cancellation must be substantial and not
based on mere apprehension or possibility
II. Special Powers of High Court or Court of Session Regarding Bail
Section 439 of CrPC accords certain special powers to both High
Court and Sessions Court with respect to Bail. They are as follows:
 Court may direct that any person accused of an offence and in custody
be released on bail and may impose any condition which it considers
necessary.
 Court may direct that any condition imposed by a Magistrate when
releasing any person on bail be set aside or modified.
 General provisions regarding bond
a. Chapter 33 of the Criminal Procedure Code, 1973 contains
provisions relating to bail bonds. According to Section 440
of the Code, the sum so determined by the court must be
reasonable and take into account all of the facts
surrounding the case.
b. Section 441 of the Code a bond guarantees the offender’s
appearance in court when required to do so in order to
answer the charge or for other reasons
c. Sec 442 talks about discharge from custody and sec 443 and
444 talks about the sufficiency of sureties and discharge of
sureties.
d. Forfeiture of bail-bonds
o Section 446 Procedure when bond is forfeited If a
person who has executed a bond does not fulfill the
conditions of the bond, the bond can be forfeited.
o Section 447 Procedure in case of insolvency If a
person who has executed a bond is declared
insolvent, the bond and the sureties become void.
o Section 448 Bond required from minor
If a minor (a person below the age of 18) is required
to execute a bond, the court may require the minor’s
guardian or another suitable person to execute the
bond on their behalf
o Section 449 talks about if Any person who is adversely
affected by an order of forfeiture under Section 446
 may appeal to the higher court within a specified
time.
o Section 450 Subsistence allowance to attendants of
persons
If an accused person is ordered to be in custody, the
court may grant a subsistence allowance to the
person’s family members or attendants who are
required to stay with them.

Conclusion
The impending philosophy behind the practice of granting bail is to ensure that
the right to life and liberty is protected. Bail jurisprudence is based on various
principles. Delays in granting bail for the accused especially if they are
innocent, not only affect the interest of an individual but it has an impact on
the welfare, well-being of the society at large.
Another grey area in the application of bail is that it is granted quite later in the
case.
If at the initial stage of the case the court finds no prima facie evidence against
the accused even in a non-bailable offence, it should grant bail in the interest
of justice. It is pertinent to mention here that justice delayed is justice denied.
Thus keeping undertrials in jail for a period longer than required is a violation
of their constitutional and human rights