Hussain Haji

What is Bail?

        The term ‘bail’ is originated from an old French verb ‘bailer’ which means ‘to give’ or ‘to deliver’.

In India the system of Bail is refers to provisional release of the accused in a criminal case in which the court is yet to announce the judgement. Bail is a kind of security that provide to the law for them to release you. It is a surety that you would be available in court as and when required in future. As mentioned before bail is your right, it’s your right to freedom and you must apply for it.

Applying for Bail

         Once the First information report is file against you or a charge is filed against you, you would need to furnish your details including information and thumb prints as well. Your background or criminal records would be checked out. It the charge is a meagre one, you can immediately apply for bail else if its a complex one, you might have to wait for around 24 hours before you could apply for it. Some offenses are non bailable also. So, your bail plea filing would depend apparently on the type of offense or accusation against you.


Types of Bail in India

  1. Regular bail-When a person commits a cognizable and non-bailable offence the police takes him in its custody or else you surrender. After the expiry of the period of police custody if any, the accused is sent to jail. U/s 437 for Regular bail and 439 under special power of High Court or Court of Session under Code of Criminal Procedure, 1973.
  2. Interim bail- The order which used to issued by court during the pendency of the litigation. These are essentially issued by the court to prevent situation in which either party may suffer harm because the other party did/continued an act which was the matter in issue.
  3. Anticipatory Bail-The concept of anticipatory bail comes into place when the accused may rightfully fear arrest in cases of cognizable offences. Bail is a legal relief that a person may be entitled to in order to get temporary freedom until his case is disposed .Depending on the gravity of the allegation, a person may be able to avoid arrest altogether. However, there are cases in which arrest is made and the accused is set free as per the provision of the bail as given U/s 438 of  Code of Criminal Procedure, 1973.


       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 Vital.

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. U/s 436 of Code of Criminal Procedure, 1973, lays down that a person accused of bailable offence.

Also, under 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 Prasad.

The accused cannot be subjected to any condition which is not pragmatic and is unfair.



The court has the power to cancel a bail granted even at a later stage. The power of the court is laid down under Section 437(5) and 439(2) of the Code of Criminal Procedure. The court can cancel the bail granted by it and give directions for the arrest of the person in police custody. However, the court does not have the power to cancel a bail granted by a police officer.

Current Scenario

The Supreme Court of India on 29 January, 2020 ruled that no time limit could be fixed for granting an anticipatory bail. The bail could continue until the end of the trial.

The bench had delivered its judgement in the case of Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr., on 24 October, 2019.

The judgement was delivered by a five-judge constitutional bench comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Ravindra Bhat.

Anticipatory Bail is granted before the arrest takes place and can be invoked only if a person is ‘apprehending an arrest’ for a non-bailable offence. Under Section 438, the person can move either to the High Court or the Court of Sessions with the same apprehension and assuage the court to grant him an order under which he would be entitled to be released in case he is arrested. One can seek an anticipatory bail even before an FIR is filed, given that one has a reason to believe in a future arrest.


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.


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