The term “bail” has not been defined anywhere under the Indian Criminal Justice System or any other Statute or Law currently in effect in India. The expression “bail”, nevertheless, signifies conditional release of a person or an accused, often on provision of a security that he will ensure his presence before the court of law, in a criminal case which is yet to be decided by the court. The Indian Criminal Law affords to an accused, all the rights to be let out on bail, until and unless the Court finds just and sufficient grounds for denial of bail.

The Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) does not give out the definition of bail. However, Section 2(a) of the CrPC defines the terms “bailable offence” and “non-bailable offence”

The Jurisprudence of bail dissects the term under separate categories, so as to define 3 independent forms of bail under the Indian Criminal Justice System.

The 3 types of bails

Regular Bail

When any person accused of or suspected of any non-bailable offence is arrested without any warrant by a police officer, or brought before a court, other than the High Court or the Court of Session, may be released on bail, if the court is satisfied that there stands no ground for believing that he has been guilty of a crime punishable with death or imprisonment for life. 

Interim Bail

Also referred to as a ‘temporary bail’ is granted to an accused during a trial. Interim Bail works on certain conditions and limited period of time (which is subject to extension on the discretion of court).

Anticipatory Bail

As a normal rule, the act of arresting comes precedent to the right to be let out on bail. However, the provision of Anticipatory Bail contained under Section 438 CrPC, allows a person to seek bail when he is under an anticipation of an arrest, i.e. before an arrest. For section 438 to come into place, the person apprehending arrest must file an application before the Court of law before the arrest takes place.

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An application for anticipatory bail can be filed only before the Court of Session or the High Court. Anticipatory bail is not a blanket relief as it comes with certain conditions that are put on him by the concerned Court.  

At the time of deciding any application seeking release on bail, the Court concerned always looks at the material, prima facie available before it, without going into the merits of the case. The ‘nature’ and ‘gravity’ of the offence plays a crucial role in deciding the grant or denial of bail in respect of a non-bailable offence. The rule of law is that the Courts shall, prima facie, deal with the questions of the case presented before it while adjudicating upon bail applications. Additionally, at the time of adjudication, the court shall neither delve into the scope of consideration and appreciation, nor rely upon the prosecution witness/witnesses, as the same stage is preserved for at the time of the trial. 

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The Courts work under certain guidelines while considering an application for the grant of bail. These are:-


  • The nature of accusation and the gravity and seriousness of punishment, in case of conviction, along with the characteristics of the supporting evidence.
  • A reasonable apprehension that there lingers a threat to the complainant party and evidence being destroyed or tampered with, and
  • A prima facie satisfaction of the court in support of the charges made.

It is also crucial for the Courts to provide the Investigating authorities with a genuine and reasonable time to carry out their responsibilities towards investigation. This implies to the necessary balance the Courts have to maintain between restricting someone’s fundamental right which are provided to them though Article 21 of the Constitution of India while denying them bail and not curtailing any innocent’s liberty, unless the facts and circumstance of the case compel the courts to do.

It is thus, very important to look at the literal language used by Section 437 of the CrPC, where it is realized that the legislature, instead of using the exhaustive term “evidence” has used a very wide term “reasonable grounds for believing”. This evidently shows that while deciding an application on the grant or denial of bail, the Courts have to merely satisfy themselves with the strength in the claim made against the person, the soundness of the case and whether it is able to produce prima facie evidence in support of the charges made thereunder. 

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