BAIL- Discretion of Court Or Matter of Right?       


Concept of Bail was introduced to safeguard the individual rights of the person as Article 21 of Constitution of India incorporates the right of Life and Personal Liberty. On the one hand, crime is considered as a wrong against the society and culprit should put behind the bars while on the other the side, there are some constitutional rights which protects the culprit’s personal freedom.

To be very precise, every citizen of India has a fundamental right to freedom guaranteed under Article 21 of the constitution of India, which specifically states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. But if any person violates it or commits any wrong against the society than in that case societal interest will prevail  over individual interest and wrongdoer shall be punished, so that the societal conscience must not be shaken.

By inserting the different Bail provisions; law makers tried to safeguard the general public interest from the arbitrary abuse of the process of law and also provided them the rights to approach the judicial forums against the abuse of power of arrest by the police.

Before getting started, I would like to mention one of my favorite quote here;

“let hundred guilty be acquitted, but one innocent should not be convicted”

The offences in Indian Criminal System has been described in two categories:

(i) Bailable offences: The offences which are of less serious nature and which are shown as bailable in the first schedule or which is made bailable by any other law for the time being in force. In bailable offences bail can be claimed as a matter of right.

(ii) Non-Bailable offences: The offences which are grave and serious in nature and under which bail cannot be claimed as a matter of right rather in cases of non-bailable offences bail is completely a discretion of court.

With regard to the severity of the offences, types of bail are differentiated. Types of Bail are discussed herein below;

Regular Bail

The provision of Regular Bail is provided under sections 436,437 and 439 of Code of Criminal Procedure (hereinafter referred as CrPC ). Section 436 provides for bail in bailable offences while section 437 and 439 provides bail in cases of non-bailable offences (Post-Arrest Stage).

(i) Section 436 provides for bail in Bailable offences. In this provision a person accused of committing a bailable offence can take bail either from police station or from court by executing bail bond or furnishing sufficient surety/security.

(ii) Section 437 specifically talks about the right of getting regular bail in cases of commission of non bailable offences. This section limits its power only to courts excluding court of session and High court.

It also sets a bar in granting bail, if there appear reasonable ground for believing that alleged accused is been guilty of offence punishable with death or imprisonment for life.


If the alleged offence committed was a cognizable one and such accused person had been previously convicted of an offence punishable with death, imprisonment for life, imprisonment for seven year or more.

  • Clause (2) of section 437 provides for granting bail to the accused on execution of bond ( with or without Sureties)
  • Clause (5) of section 437 provides for cancellation of bail in case accused violates any condition imposed on him while granting the bail, for instance: accused person tries to abscond from the process of court or tries to threat the witnesses or temper with the evidences etc..
  • Clause (6) of section 437 talks about kind of default bail, if trial of a non bailable offence not concluded in 60 days from the first date fixed for taking evidence then the person in custody be released on bail. This provision can be curtailed, by the reasons recorded by magistrate.

(iii) Section 439 gives special powers to high court and session court regarding bail. These superior courts comes up with special powers in dealing with the bail provision; they can cancel the bail or even release a person already in custody, moreover, can set aside/modify any condition imposed by a magistrate while releasing any person on bail.

  • Clause (2) of section 439 provides for cancellation of bail in case of any violation of condition imposed as already discussed above.

Anticipatory Bail

Section 438 talks about the grant of bail on reasonable apprehension in the event of arrest. This provision of Cr.P.C. deals with “Pre-Arrest Stage”, where the person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence.

“This provision was inserted in the Code of Criminal Procedure, 1973 (“CrPC”) in light of the widespread abuse of power of arrest by the police, for ulterior motives”.

The power to grant bail under this provision is limited only to the High Court and the Court of Sessions, which means a person who is apprehending arrest can file an application under this provision only before the High Court or the Sessions Court.

The court holds discretion to grant bail or reject the application.

The purpose of granting anticipatory power to these superior courts is to limit the powers only to the most experienced hands, so that no innocent be arrested and one who is guilty be escaped.

For Application of anticipatory bail, FIR is not a mandatory rule; a person apprehending arrest having reasonable apprehension can apply for the same.

Interim Bail

Interim bail is always given for a limited period of time; in other words until further orders of the court (a Temporary Bail Provision). Interim bail is been granted with respect to conditions imposed by the courts.

Court holds discretion to grant Interim Bail in both the provisions i.e., Regular or Anticipatory.

Imposition of Standard Conditions on Bail

Section 437(3) and Section 438(2) of Crpc provides certain conditions to be imposed, while court grants Bail ;

  1. Person shall make himself available for interrogation by a police officer as and when required;
  2. Person shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or any police officer;
  3. Person shall attend in accordance with the conditions of the bond executed;
  4. Person shall not commit any offence similar to the offence, of which he is accused of or suspected of;
  5. Person shall not leave India without the permission of the court.

In cases of Bailable offences, bail can be claimed as a matter of right but in cases of non-bailable offences it cannot be claimed as a matter of right rather its completely a court’s discretion.

This article is authored by Adv. Akshaya kaushik, he is a lawyer by profession and also a teacher and blogger.

Also Read – Can a High Court Exercise Extra Territorial Jurisdiction in Granting Anticipatory Bail?

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