ASSIGNMENT

TOPIC- Bail Provisions under CrPC: Analyzing Criteria and

Procedures for Granting Bail in Different Types of Offenses

SUBJECT- CODE OF CRIMINAL PROCEDURE-II

ASSIGNMENT SUBMITTED TO
FACULTY OF LAW, UNIVERSITY OF LUCKNOW

For the Partial Fulfillment of the Requirement in

LL.B. (Hons.)- VI SEM (SECTION-B)

UNDER GUIDANCE OF: SUBMITTED BY:

Dr. Raghvendra Chaudhary Kavyanjali Singh
Faculty of Law Semester 6th, Section B
University of Lucknow Roll number: 200013015089

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 TABLE OF CONTENTS

S.NO. TOPIC NAME PAGE NUMBER

1. Cover page. 1
2. Index. 2
3. Acknowledgement. 3
4. Abstract 4
5. Introduction 4
6. Objective of bail 5
7. Legal provisions 6
8. Kinds of bail 9
9. Conclusion 14
10. Bibliography 15

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 ACKNOWLEDGEMENTS

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not
forgetto thank them.

This work would not have been possible without the support and constant help of my reverend
guide Dr. Raghvendra Chaudhary, Faculty of Law, University of Lucknow; for his
countenance advice, adherent interest and pain taking nature.

I am especially indebted to, Prof. B.D.Singh, Honorable Head and Dean of Law Faculty,
University of Lucknow, who have been supportive of my career goals and who worked actively
to provide me with the protected academic time to pursue those goals.

I am grateful to all of those with whom I have had the pleasure to work during this. I am
thankful to and fortunate enough to get constant encouragement, support and guidance from
all my friends who helped me in successfully completing this project work. Also, I would like
to extend my sincere esteems to all family members for their timely support.

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 ABSTRACT
This assignment aims to analyze the bail provisions outlined in the Criminal Procedure Code
(CrPC) and explore the criteria and procedures for granting bail in various types of offenses. By
examining relevant sections of the CrPC, case laws, and scholarly articles, this assignment seeks
to provide a comprehensive understanding of the factors considered by the courts while granting
bail and the impact of such provisions on the criminal justice system.

INTRODUCTION
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 ofthe vital concepts of
criminal justice system in consonance with the fundamental principles enshrined in Parts III and
IV of the Constitution along with the protection of human rights as prescribed under International
treaties/covenants.
Wharton‟s Lexicon3 and Stroud‟s Judicial Dictionary4 defines bail as “the setting free of the
defendant by releasing him from the custody of law and entrusting him to the custody of his
sureties who are liable to produce him to appear for his trial at a specific date and time.”
According to Halsbury‟s Laws of England:5 “the effect of granting bail is not to set the defendant
(accused) free, but to release him from the custody of law and to entrust him to the custody of his
sureties who are bound to produce him to appear at his trial at a specified time and place. The
sureties may seize their principal at any time and may discharge themselves by handing him over
to the custody of the law and he will then be imprisoned. The literal meaning of the word “bail” is
surety.6 Bail, therefore, refers to release from custody, either on personal bond or with sureties.
Bail relies on release subject to monetary assurance either one‟s own assurance (also called
personal bond/ recognizance) or through third party sureties. The Supreme Court has also
reiterated this definition in the Moti Ram Case.

1
The Report No.268 of the Law Commission of India, on bail reforms, titled “Amendments to Criminal Procedure
Code, 1973
2
See Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281.
3
Law lexicon by Ramanth Iyer, (3rd ed).
4
4th Edn., 1971.
5
Halsbury‟s Laws of England, , Vol II para 166 ( 4th Edn., 1998)
6
Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023
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 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. It prevents the un-convicted individuals from suffering unnecessary
imprisonment.
However the leading authority which could be referred to for explaining the objective of bail
in detail is Sanjay Chandra v CBI.7 It defined the objective of bail as follows-

In bail applications, generally, it has been laid down from the earliest times that the object of
bail is to secure the appearance of the accused person at his trial by reasonable amount of
bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be
considered a punishment, unless it can be required to ensure that an accused person will
stand his trial when called upon. The courts owe more than verbal respect to the principle
that punishment begins after conviction, and that every man is deemed to be innocent until
duly tried and duly found guilty. From the earliest times, it was appreciated that detention in
custody pending completion of trial could be a cause of great hardship. From time to time,
necessity demands that some un-convicted persons should be held in custody pending trial to
secure their attendance at the trial but in such cases; 'necessity' is the operative test. In this
country, it would be quite contrary to the concept of personal liberty enshrined in the
Constitution that any person should be punished in respect of any matter, upon which, he has
not been convicted or that in any circumstances, he should be deprived of his liberty upon
only the belief that he will tamper with the witnesses if left at liberty, save in the most
extraordinary circumstances. Apart from the question of prevention being the object of a
refusal of bail, one must not lose sight of the fact that any imprisonment before conviction
has a substantial punitive content and it would be improper for any Court to refuse bail as a
mark of disapproval of former conduct whether the accused has been convicted for it or not
or to refuse bail to an un-convicted person for the purpose of giving him a taste of
imprisonment as a lesson.

7
(2012) 1 SCC 40
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 LEGAL PROVISIONS

The concept of bail emerges from the conflict between the police power to restrict the liberty
of a man who is alleged to have committed a crime, and presumption of innocence in favour
of the person accused of an offence. Bail is regarded as a mechanism whereby the State
imposes upon the community the function of securing the presence of the prisoners, and at
the same time involves participation of the community in administration of justice. The
provisions relating to the grant of bail are enshrined in Chapter XXXIII, under sections 436-
450 of Cr.P.C. Offences have been classified into bailable and non bailable and “cognizable”
and “non-cognizable”. Officer-in-charge of police station, Magistrate, Sessions Court and
High Court are empowered under Cr.P.C. to deal with bail, imposing conditions on bail,
cancellation of bail or anticipatory bail.

Provisions As To Bail And Bonds

Sec. 436: In What Cases Bail To Be Taken

Sec436a: Maximum Period For Which An Undertrial Prisoner Can Be Detained

Sec.437: When Bail May Taken In Case Of Non-bailable Offence

Sec.437a: bail Ta Require Accused To Appear Before The Next Appellate

Court Sec.438: Directions For Grant Of Bail To Person Apprehending Bail

Sec.439: Special Powers Or High Court And Court Of Session Regarding Bai

Sec.440: Amount Of Bond And Reduction Thereof

Sec.441: Bond Of Accused And Sureties

Sec.441A: declaration By Sureties

Sec.442: Discharge From Custody

SEC443: power to order sufficient bail when that first taken is insufficient.

SEC444: discharge of sureties

SEC445: Deposit instead of recognizance

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SEC446: Procedure when bond has been forfeited

SEC446A: Cancellation of bail and bail bond

SEC447: Procedure in case of insolvency or death

of surety or when a bond is forfeited

SEC448: Bond required from minor

SEC449: Appeal from orders under section 446

SEC450: Power to direct levy of amount due on certain recognizance

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 KINDS OF BAIL

The Code of Criminal Procedure, 1973 contains elaborate provisions relating to bails. Code
provide different kinds of bail :-

 Bail in Bailable offence (Section 436)

 Bail in Non bailable offene (section 437)
 Anticipatory bail (section 438)
 Ad interim bail
 Bail after conviction (section 389)
 Bail on default (section 167(2))

1. BAIL IN BAILABLE OFFENCE

Section 436 provides for the release on bail of a person accused of a bailable offense. Section
436 of Cr.PC is mandatory in nature and the court or the police has no discretion in the
matter. Any accused person arrested for a bailable offence willing to provide bail must be
released.8 The only discretion available with the police is to release the accused either on a
personal bond or with sureties. In cases where the accused is unable to provide bail, the
police officer must produce the accused person before the Magistrate within 24 hours of
arrest as specified under s. 57 of Cr.P.C. Subsequently, when the person accused of an
offense is produced before a Magistrate and is willing to furnish bail, then the Magistrate
must release the accused person and the only discretion available is to release either on
personal bond or a bond with sureties. The Magistrate cannot authorize detention of a person
who is willing to furnish bail with or without sureties even for the purposes of aiding the
investigation.
In Rasiklal v. Kishore s/o Khanchand Wadhwani9 the Supreme Court held that the right to
bail for bailable offences is an absolute and in-defeasible right and no discretion can be
exercised as the words of s. 436 Cr.P.C are imperative and the person accused of an offence
is bound to be released as soon as the bail is furnished.10

By Criminal Procedure (Amendment) Act, 2005 sub-section (1) Section 436 was amended to

8
Santh Prakash v. Bhagwandas Sahni, 1969 MLW (Cri) 88.
9
AIR 2009 SC 1341.
10
Id.
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 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.

2. BAIL IN CASE OF NON-BAILABLE OFFENCE

Provision, as to bail in case of non-bailable offence, is laid down in Section 437 of the
code. This section gives discretionary power to the Court (other than High court or Court of
Session) to release an accused on bail in a non-bailable case. It list down circumstances when
bail will not be granted11 or when shall bail be granted with specific condition12 etc. In
Shakuntala Devi v State of UP13 court explained that word “may” has been used in Section
437 which should not be read as mandatory rather it confer discretionary power on Court.

In Gurcharan Singh v. State (Delhi Admn.),14 the Court took the view that in other non-
bailable cases the Court will exercise its judicial discretion in favour of granting bail subject
to sub-section (3) of Section 437 Code of Criminal Procedure if it deems necessary to act
under it. Unless exceptional circumstances are brought to the notice of the Court which may
defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person
who is not accused of an offence punishable with death or imprisonment for life. It is also
clear that when an accused is brought before the Court of a Magistrate with the allegation
against him of an offence punishable with death or imprisonment for life, he has ordinarily no
option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1)
Code of Criminal Procedure and in a case where the Magistrate entertains a reasonable belief
on the materials that the accused has not been guilty of such an offence. This, will however,
be an extraordinary occasion since there will be some materials at the stage of initial arrest,
for the accusation or for strong suspicion of commission by the person of such an offence.

This Court, in the case of State of Kerala v. Raneef,15 has stated that in deciding bail
applications an important factor which should certainly be taken into consideration by the
court is the delay in concluding the trial.

11
Section 437(i) (ii) CrPC.
12
Section 437(iii) CrPC

14
(1978) 1 SCC 118.
15
(2011) 1 SCC 784
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 3. 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, 1973. The words anticipatory bail is neither
found in section 438 nor in its marginal note.

Scope And Ambit Of Anticipatory Bail

The court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra,38 here
discussed the scope and ambit of anticipatory bail and said that principles regarding it has been
laid down in the Sibbia‟s case should be followed by the court.39

a. Section438 (1) is to be interpreted in light of Article 21 of the Constitution of India.

b. Filing of FIR is not a condition precedent to exercise of power under Section 438.
c. Order under Section 438 would not affect the right of police to conduct investigation.
d. Conditions mentioned in Section 437 cannot be read into Section 438.
e. Although the power to release on anticipatory bail can be described as of an
"extraordinary" character this would "not justify the conclusion that the power must
be exercised in exceptional cases only." Powers are discretionary to be exercised in
light of the

The expression “anticipatory bail” is also not defined in Cr.P.C. However, the Supreme Court
in Balchand Jain v. State of M.P.16 has characterized anticipatory bail to mean „a bail in
anticipation of arrest‟. The expression is a misnomer as it represents a futility that bail may be
granted by the court in apprehension of an arrest. When a competent court grants
“anticipatory bail”, it issues an order that in case of an arrest, the person shall be released on
bail.

It has been held in the Gurbaksh Singh Sibbia v. State of Punjab17 that s. 438 of Cr.PC was
enacted to protect those people who are implicated by their rivals in false cases for the
purpose of disgracing them or for other purposes by detaining them in jail.18

16
AIR 1977 SC 2447.
17
AIR 1980 SC 1632.
18
Law Commission of India, “Forty-first Report on the Code of Criminal Procedure, 1898” Vol. I (1969) at para 39.9.

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 The Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra,19 observed:
the law of bail dovetails two conflicting interests namely, the obligation to shield the society
from the hazards of those committing and repeating crimes and on the other hand absolute
adherence to the fundamental principle of criminal jurisprudence - presumption of innocence
and the sanctity of individual liberty. The Supreme Court emphasized that anticipatory bail is
a device to secure the individual's liberty, and neither a passport for the commission of
crimes nor a shield against any and all kinds of accusations likely or unlikely.

4. BAIL ON DEFAULT

Section 167(2) of the Criminal Procedure Code, 1973 empowers judicial magistrates to
authorize custody of an accused person in cases wherein investigation cannot be completed in
twenty-four hours. It provides for the maximum period of custody that can be authorized. It
further contains a mandate that if the investigation is not completed within the stipulated
maximum period, the accused is to be released on bail whatever may be the nature of
accusation against him.

The object of this provision manifests the legislative anxiety that once a person‟s liberty has
been interfered with, the arrest made without a warrant or a court order, the investigation
must be conducted with utmost urgency.53 Persons who are detained for committing an
offence and undergoing investigation are statutorily eligible for bail under Section 167(2) of

Code after ninety days where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for not less than ten years; and sixty days where the
investigation is relating to any other offence, if the investigating authorities fail to complete
their investigation and file a charge-sheet within this period.

5. INTERIM BAIL
There is no express legal provision of ad-interim or interim bail. Section 439 CrPC is on the
High Court‟s and the Sessions Court‟s power to release the accused on bail in custody.
Evident as it is that Sections 436, 437 and 439 are repository of powers of the court to release
the accused in custody on bail. That‟s post-arrest. As seen above, the newly substituted
Section 438 expressly provides for interim bail pending disposal of the plea for anticipatory
bail. It‟s an important provision as the accused faces the threat of arrest before his application
19
AIR 2011 SC 312

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 for the bail is decided. Also, it‟s consistent with the concept of fundamental right to life and
liberty under Article 21 of the Constitution of India. Interim bail may be granted when the
court is satisfied that the object of the. However, this kind of bail may be granted at any stage
of a case by way of court‟s inherent power.
In Siddharam v State20 court held that there is no express provision for interim bail in
Sections 437 or 439 CrPC. Of course Section 437(2) hints at such a power, but not in explicit
terms. Even to exercise the power there under, the Magistrate may order notice to the
prosecution in which case the accused under arrest can‟t avoid detention in jail. Thus, the
interim bail regime becomes relevant even in post-arrest matters, leaving alone the interim
bail provision in Section 438 CrPC. Life bereft of liberty is without honour and dignity.
In Lal Kamlendra v State,21 court observed: “….following the decision of this Court in
Kamlendra Pratap Singh v State of U.P.22 we reiterate that a court hearing a regular bail
application has got inherent power to grant interim bail pending final disposal of the bail
application. In our opinion, this is the proper view in view of Article 21 of the Constitution of
India which protects the life and liberty of every person……. .. When a person applies for
regular bail then the court concerned ordinarily lists that application after a few days so that
it can look into the case diary which has to be obtained from the police authorities and in the
meantime the applicant has to go to jail, here interim bail comes into picture.”

6. BAIL AFTER CONVICTION

Section 389 (1) and (2) of Cr.P.C. deals with a situation where convicted person can get a Bail
from appellate court after filing the criminal appeal. Section 389 (3) deals with a situation where
the trial court itself can grant a bail to convicted accused enabling him to prefer an appeal.
The Patna High Court in Suddu kumar vs. State of Bihar23 has observed that if a prayer for
suspension of sentence and release of an appellant on bail, convicted of a capital crime and
sentenced to undergo imprisonment for life, it is to be considered favourably and he is ordinarily
allowed bail if he has completed seven years of incarceration in connection with such case before
conviction and after conviction, taken together when his appeal is not likely to be heard on merits
in near future, on the ground of possible delay in the disposal of the appeal.

A Two Judge Bench of the Supreme Court, in Atul Tripathi V. State of UP discussed the scope
and ambit of Section 389 of Cr.P.C and issued the following Guidelines regarding the suspension
20
(2011) 1 SCC 694.
21
(2009) 4 SCC 437.
22
(2009) 4 SCC 437
23
Criminal Appeal (DB) 583 of 2015 dt. 09-03-2017
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of Sentence during the pendency of Criminal Appeal.
a. The appellate court, if inclined to consider the release of a convict sentenced to
punishment for death or imprisonment for life or for a period of ten years or more,
shall first give an opportunity to the public prosecutor to show cause in writing
against such release.
b. On such opportunity being given, the State is required to file its objections, if any, in
writing.
c. In case the public prosecutor does not file the objections in writing, the appellate court
shall, in its order, specify that no objection had been filed despite the opportunity
granted by the court.
d. The court shall judiciously consider all the relevant factors whether specified in the
objections or not, like gravity of offence, nature of the crime, age, criminal
antecedents of the convict, impact on public confidence in court, etc. before passing
an order for release

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 CONCLUSION

The Criminal Procedure Code, gives only an outline of the provisions of bail, but most of the
work is done by the courts themselves. The judicial principles laid-down by the courts may
be changed by the courts also. As far as the meaning and definition of bail is concerned it has
not been statutory defined. Consequently, it continues to be understood as a right for
assurance of freedom against State imposed restrains of security of appearance of a person for
his release. Bail is generally a matter of judiciary discretion. While considering whether to
grant or not to grant bail, conflicting claims of undoubtedly liberty of the accused and the
larger interest of the society have to be taken note of. As far as the evolution and history of
bail is concerned it has gradually evolved in India. This is a very important instrument. The
importance of instrument of bail can be imagined from the fact that from the initial stage of
accusation at police level to Apex Court and right from direction for anticipatory bail to
special powers of High Court and Court of Session to grant bail and writ of Habeas corpus
and certiorari have been provided to restore the liberty of the individual

For the purpose of granting bail offences have been classified into Bailable and non-bailable
offences under Section 2 of the Criminal Procedure Code. The basic distinction in these
offences is that in bailable offences Bail can be claimed as a matter of right, whereas in non-
bailable offences it is at the discretion of the Courts whether to grant bail or not. While
granting bail in case of non-bailable offences various factors are to be taken into account by
the Courts Today the horizon of Human Rights is expanding. At the same time, the crime rate
is also increasing. Observing this, Supreme Court has been held that there is urgent need to
make a balance between personal liberty and investigational powers of Police. There can be
no gain saying that freedom of an individual must yield to the security of the state. However,
not right can be absolute and reasonable restrictions can be placed on them.

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 BIBLIOGRAPHY

BOOK’S REFERRED
 R.V. KELKAR‟S CRIMINAL PROCEDURE, 6TH EDITION, 2016.
 RATANLAL AND DHIRAJLAL‟S THE CODE OF CRIMINAL PROCEDURE,
LEXIS NEXIS, 22 ND EDITION.
 SARKAR, THE CODE OF CRIMINAL PROCEDURE.

ONLINE REFRRENCES
 ALL INDIA REPORTER
 SCC ONLINE
 MANUPATRA

REPORT
 The Report No.268 of the Law Commission of India, on bail reforms, titled
“Amendments to Criminal Procedure Code, 1973

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