The Concept of Bail in India: Detailed analysis along with case laws

Shahnaz Begum | Legal Thikana 

The term “Bail” is an important concept of the criminal justice system of India. The term was not specifically defined under any act or statute of India prior to the enforcement of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. Various legal sources like legal dictionaries, reports of commissions, journals, etc. were referred to by the courts for interpreting the meaning of bail in their judgements. For example, in the case of Moti Ram v. State of M.P. (AIR 1978 SC 1954), the Supreme Court referred to the meaning of bail given in Webster’s Third International Dictionary according to which bail is the process by which a person is released from custody. The term “bail” was nevertheless frequently used in the Criminal Procedure Code, 1973 which has now been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 which came into effect on 1st July, 2024.

The BNSS clearly provides the definition of the term Bail under section-2(1)(b) of the Act. The term Bail has been defined in the BNSS, 2023 as the release of a person who may be either accused of or suspected of commission of an offence from the custody of law and such release is only on certain conditions imposed by an officer or court on execution by such person of a bond or bail bond.

Some important terms which arises out of the above definition are discussed below:

●      Bail Bond - It is defined under section 2(1)(d) of BNSS, 2023. After an accused or a suspect of an offence is arrested there is a procedure by which such arrested person can be released temporarily by an undertaking for release. Such undertaking must be made along with a surety.

The surety requires to guarantee that he would ensure the presence of the accused on the dates fixed by court for appearance.

●      Bond - It is defined under section 2(1)(e) of BNSS, 2023. It also provides a procedure for temporary release of an arrested person through undertaking for release but in Bond there is no requirement of surety.

There is no requirement for a surety to ensure attendance of accused but the accused himself solely responsible for his appearance in court.

●      Conditions - There may be some conditions imposed by the court or officer which strictly need to be adhered to by the accused for the grant of bail. Such as given below:

1.     Surrendering of passport - Passport may be asked to be surrendered so that the accused do not escape the territorial limits of the country to escape the law.

2.     Depositing Cash - Cash may be deposited in addition to personal bond or  cash may be deposited in place of presenting surety for release on Bail (Cash Bail).

3.     Reporting at regular intervals - The accused may be asked to appear at police station/court at regular intervals as a condition of Bail.

4.     Restriction on travel - Restrictions may be imposed on travelling beyond certain limits.

5.     Other conditions - Such other conditions may be imposed as the court deems fit.

However, it is to be noted that the court cannot impose conditions arbitrarily without reasonable justification. The Supreme Court in Frank Vitus vs. Narcotics Bureau & Ors. (2024 INSC 479), elaborately gave its opinion regarding the extent to which conditions can be imposed on bail. It stated that while dealing with a case, the court has to remember the fact that the guilt of the accused is yet to be established and so there is a presumption of innocence.

Hence, an accused cannot be deprived of all his rights guaranteed under Article-21 of the Constitution and there should be restraint while imposing conditions on bail. The Court further stated that the right to privacy included under Article -21 is violated if conditions on bail like keeping a constant vigil on the movements of accused enlarged on bail is imposed. Such a condition amounts to some kind of confinement.

Bailable and Non-Bailable Offence :

Offences are classified as per the BNSS, 2023 under two heads, i.e. Bailable and Non-Bailable. Section-2 (1)(c) defines both these terms. It simply defines “bailable offence”  as those offences which are mentioned to be bailable in First schedule of BNSS or under any other law whereas “non-bailable” offences would include any offences other than those mentioned as bailable. The right to bail available to an accused differs in both  the types of offences.

In case of bailable offences, bail can be granted as a matter of right whereas in non-bailable offences the right to bail is as per the discretion of the court. Generally, the offences which are of less serious nature and punishable with imprisonment of less than three years or only fine are bailable offences while for offences which are of a grievous nature and where punishment is three years or more are non-bailable offences.

History of Bail in India :

The history of bail in India can be understood by tracing back to three distinct eras which are : era of ancient Hindu rulers, era of the Mughal rulers and era of British-India.

●      Bail in era of ancient Hindu rulers

During ancient Hindu rule the concept of bail was not specifically mentioned in any Hindu text or scriptures, chronicles but existed informally or conceptually. The practice of pre-trial detention was discouraged and told to be avoided in Kautilya’s Arthashastra which was a treatise on various subjects like military, statecraft, economic policy, etc. The Hindu jurisprudence necessitated expedient disposal of disputes by functionaries responsible for administration of justice.

●      Bail in era of Mughal rulers

It is found that the criminal justice system of Mughal rulers was acquainted with the process of bail. An Italian traveller of the 17th century in his travelogue highlighted the institution of bail in that era in India which provided for the release of arrested persons on his furnishing surety. He stated that he was falsely charged of theft and imprisoned but eventually granted bail by the ruler of Punjab. However, the kotwal (term used for chief police officer of an area during Mughal rule) released him only on furnishing a surety.

●      Bail in era of British-India 

The British rule in India witnessed a gradual substitution of the existing Indian legal system with English legal system which paved the way for English criminal laws and procedures. It is during this era that codification of substantive and procedural laws began in India.

Indian Penal Code, 1860 was the first codified substantive law in the country. The Criminal Procedure Code, 1861 enacted by the Britishers recognized the system of bail. It stated for releasing accused persons on bail or on their own recognizance in case of lack of evidence or reasonable grounds for transmission of accused before magistrate.

The Criminal Procedure Code, 1861 was replaced by Criminal Procedure Code, 1872. The Criminal Procedure Code of 1872 was replaced by Criminal Procedure Code of 1882 which was later amended in 1898.

Subsequently, in independent India a new version of the Code, i.e. the Criminal Procedure Code, 1973 replaced the old one as a result of recommendations and modifications suggested by the 41st Report of Law Commission of India. This Report introduced various important provisions. The most significant one was the introduction of the provision of Anticipatory Bail.

Rationale behind Granting Bail :

The rationale behind granting bail can be understood under the following heads:

1. Rationale provided by Article 21

Article 21 of the Constitution  reads as:

“ No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Unnecessary and prolonged detention of undertrials defeats the right of personal liberty guaranteed under Article 21. This was stated by the Supreme Court in Satender Kumar Antil v. CBI (10 SCC 773). Hence, bail is a procedure which cures this defect so that there is no wrongful or unnecessary detention of an arrested person.

●      Right to Live with Dignity

Every individual has the right to live with dignity including undertrials. In Hussainara Khatoon v. State of Bihar (1979 AIR 1369) the Supreme Court held that prolonged detention of undertrial prisoners violates Article 21 which also includes in its ambit the right to live in a dignified way and not merely animal existence.  The Supreme Court, understanding the plight of undertrial prisoners who are not economically sound to defend themselves, ordered for providing free legal aid to help under-trial prisoners charged with bailable offences.

2. Rationale provided by Article 22

Article 22 (1) reads as :

“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”

Thus, the right to be defended and  to consult a Legal Practitioner is a fundamental right available to arrested persons. In State of Madhya Pradesh v. Shobharam (AIR 1966 SUPREME COURT 1910), the Hon’ble Supreme Court opined that it is a constitutional right to consult a legal practitioner concerning arrest and right to be defended. This right to be defended is nothing but would include a right to take steps through a legal practitioner for release from the arrest i.e. through Bail.

In Vihaan Kumar v. State of Haryana & Anr. ([2025] 2 S.C.R. 424 : 2025 INSC 162), it was stated by the Apex court that it is the duty of the court to order the release of accused whenever it is found that there is a violation of Article 22(1). Such violation is itself a ground to grant bail even if statutory restrictions exist against granting of such bail.

3. The Principle of Presumption of Innocence

When a person is arrested and detained for a long time without establishing any guilt it amounts to infringement of the basic principles of justice particularly the principle i.e. – “an accused is presumed innocent until proven guilty”.

In Preet Pal Singh vs. State of U.P. (AIR 2020 SUPREME COURT 3995), the Supreme Court stated that in case of grant of bail related to pre-trial arrest there may be a presumption of innocence and it is a fundamental postulate of criminal jurisprudence. It further stated that the courts may take a liberal view depending on the facts and circumstances of the case in case of pre-trial arrest.

4. The Principle of “Bail is the Rule and Jail is the Exception” 

The legal principle “Bail is the Rule and Jail is the exception” was coined by Justice Krishna Iyer in the case of State of Rajasthan v. Balchand @ Baliya (1977 AIR 2447). It was held in this case that bail is the basic rule and not jail. Jail is essential only in circumstances where there is a possibility of the accused person fleeing from justice or thwarting the process of justice or intimidating witnesses, etc. It was also stated that particularly, the gravity of offence must be considered in deciding the matter of bail.

The Supreme Court held in the case of Emperor Vs. H.L. Hutchinson ( AIR 1931 All 356) that the grant of a bail should be the rule and refusal of bail should be the exception. It was also stated that in case of bailable offence the accused person should be released on bail if he applies for it.

5. Reducing overcrowding in Jails

Overcrowding of jails is a matter of serious concern in India. It affects the health and hygiene of prisoners and also infringes various other rights of such prisoners. Mr. Justice K.G. Balakrishnan, on 13/11/2014  while inaugurating a two-day National Seminar on Prison Reforms organized by the NHRC said that the undertrial prisoners should be released on bail after filing of chargesheet in courts in order to reduce the burden of overcrowding in jails.

Types of Bail in India under BNSS:

●      Regular Bail - This type of bail is applicable in case of a person who has already been arrested. The person is in custody after arrest and this bail helps in the release of such an arrested person and lets him remain free till the completion of the trial.

●      Anticipatory Bail - This type of bail is applicable in those cases where there is apprehension of arrest for a non-bailable offence and not actual arrest. The accused person can avoid being arrested with the help of this provision. The accused person may be asked to comply with certain conditions.

●      Interim Bail - This type of bail  is for a short period of time and temporarily  granted during pendency of an application for regular or anticipatory bail.

●       Statutory Bail - This type of bail is also known as default bail and is applicable when the investigating agency fails to complete the investigation and file a chargesheet within a specified timeframe.

Sections related to Bail in BNSS and corresponding sections in the CrPC

CrPC Sections	Provisions	BNSS Sections
Section- 436	In what cases bail to be taken	Section- 478
Section- 436-A	Maximum period for which undertrial prisoner can be detained	Section- 479
Section- 437	When bail may be taken in case of non-bailable offence	Section- 480
Section- 437-A	Bail to require accused to appear before next Appellate Court	Section- 481
Section- 438	Direction for grant of bail to person apprehending arrest	Section- 482
Section- 439	Special powers of High Court or Court of Session regarding bail	Section- 483
Section- 440	Amount of bond and reduction	Section- 484
Section- 441	Bond of accused and sureties	Section- 485
Section- 441-A	Declaration by sureties	Section- 486
Section- 442	Discharge from custody	Section- 487
Section- 443	Power to order sufficient bail when that first taken is insufficient	Section- 488
Section- 444	Discharge of sureties	Section- 489
Section- 445	Deposit instead of recognizance	Section- 490
Section- 446	Procedure when bond has been forfeited	Section- 491
Section- 446-A	Cancellation of bond and bail-bond	Section- 492
Section- 447	Procedure in case of insolvency or death of surety or when a bond is forfeited	Section- 493
Section- 448	Bond required from minor	Section- 494
Section- 449	Appeal from orders under Section-446	Section- 495
Section- 450	Power to direct levy of amount due on certain recognizance	Section- 496

Major changes in law related to bail provisions :

●      Clear definitions -

The CrPC, 1973 did not provide specific definitions of the terms Bail, Bail Bond and Bond. BNSS, 2023 clearly defines all the three terms under Sections-2(1)(b), 2(1)(d) and 2(1)(e) respectively.

●      Provision for undertrial prisoners -

In section-436-A of CrPC, there was provision for release of  undertrial prisoners (prisoners who are detained during the period of investigation, inquiry or trial) by the Court on their personal bond with or without sureties when such undertrial prisoners had undergone one-half of the maximum period of imprisonment for the offence excluding offences which are punishable with death. However, in the case of section-479 of BNSS which deals with the same subject matter i.e release of undertrial prisoners it excludes one more class of offence besides the ones punishable with death and those are offences punishable with life imprisonment.

Also, the undertrials who are first-time offenders have been provided relief under BNSS as it provides for their release on bond in case they have undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for the offence.

●      Modification in scope of factors in relation to granting Anticipatory Bail -

Previously, section - 438 CrPC dealt with Anticipatory Bail while after coming into force of BNSS section - 482 of BNSS deals with the provision of Anticipatory Bail. The substantial difference in the new section is that the factors considering which High Court or Court of Session released a person apprehending arrest on bail are not explicitly mentioned, thereby making it discretionary for the courts to take into consideration any factor or various other factors before allowing bail to such person and not confining to only certain factors particularly as in the section of the CrPC.

Conclusion:

The provisions related to bail are an important part of the daily practice in court. The BNSS has not modified or substantially changed the provisions related to bail which were provided by the Code of Criminal Procedure. However, a few modifications have been made and clarity has been provided by specific definitions of bail, bond and bail-bond which were not in existence under the CrPC.

References:

●      Rao, Adv. Naveen. Bail or Jail: A Balance of Absolute and Limited Judicial Discretion. N.p., eBooks2go Incorporated, 2019.

●      After chargesheets, the undertrial prisoners should be released on bail to reduce overcrowding in jails; says NHRC Chairperson (13.11.2014). National Human Rights Commission India. (n.d.). https://nhrc.nic.in/press-release/after-chargesheets-undertrial-prisoners-should-be-released-bail-reduce-overcrowding 

●      Key issues of remand and bail jurisprudence. (n.d.-b). https://jajharkhand.in/wp-content/uploads/2023/08/Bail-and-Remand-Final.pdf