Bail

'Bail' is derived from the old French verb 'baillier

meaning to 'give or deliver.
Bail in English Common law is the freeing or
setting at liberty a person arrested or imprisoned
on security or on surety being taken for his
appearance on certain day and a place named .
Bail is the delivery of arrested person to his
sureties upon their giving security for his
appearance at a designated place and time, to
the jurisdiction and judgment of the court.
 The effect of granting bail is not to set the
prisoner free from jail-or custody, 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 in the court at a
specified time and places.
 The object, of keeping an accused person in
detention prior to or during the trial is not
punishment,
(i) to prevent repetition of offence with; which he
is charged: and
(ii) to secure his attendance at the trial.
 Categories of Bail:
Bail during inquiry and investigation:
a) Bail by the police (Ss.496,497)
b) Bail by the Magistrate or Court (Ss.496-498)
Bail after investigation but before conviction.
a) Bail by the Magistrate or Court (Ss.496-498)
Bail after conviction.
a) Bail pending appeal U/S.426,498
b) Bail pending revision U/S.435.
 Bail in bail able offence: S.496
 Bail in non bail able offence S.497
 Anticipatory Bail :S.498
 Right of Bail in Bailable Offence (S. 496):
 The accused person has the right to get bail if he
submits a bail bond. Even in case of his inability or
inconvenience to furnish a bail bond with sureties he
may be allowed to go on bail free on his own bond.
 This is a mandatory provision and the accused person
has got the right to be released on bail.
 The Magistrate has got no authority to act otherwise
whatever may the facts and circumstances of the
offence.
 Even a person committing a bailable offence if
arrested or detained without warrant by an Officer-in-
Charge of a Police Station and he is prepared to
execute a bond at any time while in the custody of
such officer, such person shall be released on bail.
 In the case of bail-able offences the person
accused has the indefeasible right to grant of
bail subject, of course, being offered, if sureties
are considered necessary [PLD1963 SC478].
 The provisions of this section are mandatory,
and the Court or the Officer-in-Charge of the
police station, as the case may be, is bound to
release the person in custody who i accused of
bail-able offence, to satisfactory sureties, on
bail provided he is prepared to give it on
recognizance.[PLD1987LAH225]
 The seriousness of the offence is immaterial for
the purpose of bail, provided that the offence is
bailable.[2 PC.R 89]
 Even the definite fear that the accused would
temper wit the prosecution evidence cannot
hamper grant of bail [AIR 1945 PC 94]
 The conditions laid down by the Supreme Court
for grant of bail by a Magistrate are as follows:
 (a) if the person seeking bail has been placed
under actual custody; or
 (b) he appears in answer to a process issued
by the Court; or
 (c) he is brought before the Court;
 (i) by the police, or
 (ii) by some other arresting authority

Case: PLD 1966 SC 589.

 Right of Bail in Non-bail-able Offence (sec. 497):
 Granting of bail in case of non-bail-able offence
has not been described as mandatory yet the
force of the law is to grant bail in non-bailable
offence also except for offences punishable
with death or transportation for life.
 Here 'may be released on bail' empowers the
Magistrate with discretionary power. in case of
non-bailable offence punishable with death or
transportation for life the Court has been
directed not to release such accused person on
bail but at the same time provisions are also
made.
 The Magistrate has been empowered with a
discretionary power to grant of bail by the word
'may direct'.
 Magistrate may apply this power only to a
person under the age of sixteen years, or any
women or sick or infirm accused of such an
offence to release on bail.
 The application U/S.497 for granting of bail
incase of non-bailable offence is a complicated
one and the Magistrate should be cautious and
apply his mind judiciously.
 The application of this section is a discretionary
act of the Magistrate.
 Non-bailable offence not punishable with death or
transportation for life
 Here the accused person may get the privileges
of bail if the Court is satisfied with the facts &
circumstances of the case.
 But if the Magistrate grants bail in the above
case the Magistrate must record reason in
support of his order in granting bail in non-
bailable offence.
 The force of the law is to grant bail but the court
shall take into account if there is any
apprehension of abscontion, tempering of the
prosecution evidences, social position, law and
order situation, facts and such other similar
matters.
 Though in case of non-bailable offence the
accused person has no indefeasible right of bail
yet the Magistrate should borne in mind that it is
a privilege for the accused person committing
non-bailable offence not punishable with death
or transportation for life, to get bail and the
accused person should not be denied of this
privileges if otherwise nothing goes against him
in consideration of granting bail.
 Non-bailable offence punishable with death
or transportation for life
 Firstly in case of non-bailable offence
punishable with death on transportation of life
the Court is generally barred form granting bail
to an accused person. But to deny the grant of
bail there must appear reasonable grounds for
believing the Court that the accused person has
been guilty of offence punishable with death or
transportation of life.
 The reasonable grounds must appear from the
facts of the case and the primary evidences at
the time of consideration of the bail.
 Secondly, in case of non-bailable offence
punishable with death or transportation for life
committed by person under the age of sixteen
years or any woman or sick or infirm may be
granted bail. The above mentioned accused
person has the privileges to be released on bail
in case of such offences also.
 the law is liberal to the accused person under
the age of sixteen years or woman or sick or
infirm, so these type of accused person
committing non-bailable offences punishable
with death or transportation for life also
deserves to be released on bail.
 Rights and Privileges for bail in cases of further
inquiry
 The accused persons committing non-bailable offence
may have further rights and pivileges which have been
narrated in clause (2) & clause (4) of section 497 of
Cr.P.C. Clause (2) states,
 If it appears to such officer or Court at any stage of the
investigation, inquiry or trial as the case may be, that
there are not reasonable grounds for believing that the
accused has committed a non-bailable offence, but
that there are sufficient grounds for further inquiry into
his guilt, the accused shall, pending such inquiry, be
released on bail, or, at the discretion of such officer or
Court, on execution by him of a bond without sureties
for his appearance
 Here it is a mandatory provision and the
accused person has got the right to be released
though he is charged with committing non-
bailable offence if the Court is of opinion that
there are reasonable grounds for believing that
the accused is not guilty of such offence and
further inquiry into his guilt in needed.
 So if the Court is not beyond reasonable doubt
about his guilt after the conclusion of the trial it
shall release the accused person for his
appearance to hear judgment.
 Even if the person is in judicial custody, long
delay in holding the trial, it is reasonable ground
to allow the accused person to be released on
bail till the commencement of trial.
 The liberty of the person though accused of
non-bailable offence other than of offences
punishable with death or transportation of life
has been guaranteed in every stage of the
judicial proceedings. It should be a sacred duty
of the Court to uphold the rights and privileges
of the accused persons as emphasized in the
Code.
 Difficulties attending in grant of bail in
murder case.
 Difficulties in deciding bail matters in murder
cases are:
 (a)Courts are to take decisions immediately
after the complaint is lodged when the case is
still pending investigation and rather meagre
and insufficient material is available in the legal
parlance;
 (b)possibility or even probability or
misstatements, distortions and exaggeration of
fact made by the complainant;
 (c)scarcity of scrupulous police officers;
 (d) lamentable lack of public spiritedness in our
people; and
 (e) some police officers may not hesitate to
fabricate evidence in order to fill in the lacuna in
the prosecution case once they are convinced
of the guilt of the accused.
 General conditions for granting bail
 While considering the question of grant of bail
under this section matters of the character
stated below are to be taken into consideration
in granting or refusing bail. They are:-
 (1) Whether there is a prima-facie case against
the accused;
 (2) Whether the release of the accused on bail
would place him in a position of advantage
against the prosecution and that it would lead to
the implication that a case for conviction does
not exist;
 (3) Whether the accused, if at liberty, would temper
wit! and destroy the evidence intended to be adduced
against him;
 (4) Whether the offence with which he is charged i;
heinous and is under public condemnation;
 (5) Whether the accused is habitual offender in the
crime with which he is charged, or is in other respects,
of a criminal bent of mind;
 (6) Whether by his detention in jail his defence in
Court will be hampered;
 (7) Whether on account of his detention his dependent
would be deprived of their subsistence;
 (8) Age, health and sex of the accused
 Reasonable grounds is an expression which
connotes that the grounds be such as would
appear to a reasonable man for connecting the
accused with the crime with which he is
charged, 'grounds' being a word of higher
import than 'suspicion'. Whatever, strong a
suspicion may be, it would not take the place of
reasonable grounds.
 In order to find out reasonable grounds for
belief while considering the question of bail, the
Court should go into the following materials:-
 (i) nature of accusation in the FIR;
 (ii) nature of the evidence which prosecution
propose to examine i.e. statements under
section 161 Cr.P.C and documents;
 (iii) statements of witnesses under section 164
Cr.P.C.;
 (iv) medical evidence;
 (v) defence raised during investigation; and
(vi) police report under section 173 Cr.P.C.
 The Court may also consider serious doubts
apparent o the face of the record and any other
special circumstances [1988P.Cr.LJ54.]
 There are five cases, where bail may be cancelled and
the person on bail recommitted to jail. These are:-
 (1) if the person on bail during the period of bail,
commits the very same offence for which he is being
tried or has been convicted, and thereby proves his
utter unfitness to be on bail;
 (2) if he hampers the investigation;
 (3) if he tempers the evidence;
 (4) if he runs away to a foreign country, or goes
underground, or beyond the control of his sureties;
and
 (5) if he commits acts or violence, in revenge, against
the police and prosecution witnesses and that who
have booked him or are trying to book him.
 Considerations for granting bail in offences
which at punishable with death or imprisonment
for life are very much different from the
considerations on which bail can b granted in
other offences. It is necessary for the purpose c
granting bail to person charged with offences
punishable wit death or imprisonment for life
that the evidence brought o record should be
looked into and a prima facie view former as to
whether there appear reasonable grounds for
believe in that he is guilty of that offences
 The question .of grant or refuse of bail, at the
stage of investigation or prior to trial, is to be
settled in the light of evidence proposed to be
produced by prosecution against the accused
defence version, if any, and the police report
under section 173 Cr.P.C. along with attending
circumstances appearing from the investigation
[PLD 1986 (AJ&K) 112]

 Gravity of the offence charged is not by itself

sufficient t refuse bail-reasonable grounds for
believing that the perso seeking bail is guilty of
such offence, must exist. [. (1962) 14 DLR (FC)
321]
 Bail by the Police:
 An officer in charge of a police station is bound to
grant bail in bailable offence and an improper refusal
to do so will amount to a violation of duty (section
497(1) and (2)).
 For the purposes of bail in non-bailable offence the
legislature has classified the non-bailable offences into
two heads, namely, (1) those which are punishable
with death or imprisonment for life; and (2) those
which are not so punishable. In the case of an offence
punishable with death or imprisonment for life, an
officer in charge of a police station cannot enlarge a
person on bail if there appear reasonable grounds for
believing that he was guilty for such offence. The age,
sex, or sickness or infirmity of the accused cannot be
considered by the police officer for the purpose of
granting a bail under section 497(1).
 Interim or Ad-interim Bail:
 There is no express legal provision of ad-
interim or interim bail. However, this kind of bail
may be granted at any stage of a case by way
of court's inherent power. If the case is pending
in the Magistrate Court, application for such a
bail will have to be filed in the Sessions Court
under section 497 and if the case is in the
Sessions Court, application will go to the High
Court Division against the order of the Sessions
Court. An ad-interim bail may be pending
appeal or revision. It may also be pending
investigation or inquiry (section 426, 426(2A)).
 Anticipatory Bail (bail before arrest):
 When a person is granted bail in apprehension
of arrest, this is called anticipatory bail. This is
an extra-ordinary measure and an " exception
to the general rule of bail. When any person
has reason to believe that he may be arrested
on an accusation of having committed a non-
bailable offence, he may apply to the High
Court Division or the Court of Sessions for a
direction and the court may, if it thinks fit, direct
that in the event of such arrest, he shall be
released on bail.
 There is no section or provision which
specifically authorise the court to grant an
anticipatory bail. (In Indian CrPC 1973 section
438 specifically provides for anticipatory bail).
However, application is made under section
498 of the CrPC for an anticipatory bail. This is
because of the wording in the section, "in any
case". Thus the power given in this section is
very wide and can be exercised by both the
High Court Division and the Court of Session in
any case without any limitation.
 Bail to an Under-trial Prisoner
 (1) A Magistrate has to conclude the trial of a
case within 180 days from the date on which
the case is received by him for trial.
 (2) A Session Judge, Additional Session Judge
or an Assistant Session Judge shall conclude
trial within 360 days.
 (3) If a trial cannot be concluded within the
specified time, the accused in the case, if he is
accused of a non-bailable offence, It may be
released on bail to the satisfaction of the court,
unless for reasons to be recorded in writing, the
court otherwise directs (section 339C).
 Bail after Conviction:
 Sections 496 and 497 have no application
where a person has been tried and convicted
even though the conviction is for bailable
offence. Section 496 and 497 are in terms
confined to accused person and a person after
conviction ceases to be an accused. Sections
426 and 435 of CrPC would be relevant for bail
after conviction. Bail after conviction may be of
two types:
 (a) Bail pending appeal under section 426 and
498; and
 (b^ Bail pending revision under section 435.