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Brief Analysis On Laws Related to Bail-In India

Updated: Jan 18


Right to Life possesses a liberal interpretation in Article 21 of the Indian Constitution. The right to bail can also be a part under Article 21 since it covers a wide ambit. Indian Penal Code has differentiated offences into two parts; Bailable offence and Non-bailable offence. In Bailable offences, the accused has the right of bail, but in Non Bailable offences the question of bail is under the discretion of the court. To grant bail circumstances, the gravity of offences needs to be considered. The 41st Report on the Code of Criminal Procedure by The law commission of India has sought to streamline the law of bail in the changed context of independent India guaranteeing personal freedom as one of the Fundamental Rights to all citizens of India. The law commission has recognized bail as a matter of right if the offence is available, but it is a matter of discretion if the offence is non-bailable.

Bail is an agreement in which a person makes a written promise to the court to appear before it whenever required and to comply with any conditions set up in the agreement.

  • Bailable offences -Bailable offences are less grave and less serious. Bail is claimed as a matter of right under bailable offences.

  • Non-Bailable offences - Non-Bailable offences are grave and serious offences. For example, the offence of murder.

Arrest by Police

In Bailable Offences, if a person is arrested by a police officer without any order from a magistrate and a warrant under circumstances mentioned in section 41, such a person has to get released on bail. After arrest, a police officer cannot detain a person not more than 24hrs in custody. He has to produce the arrested person before the magistrate before 24hrs. It is a right guaranteed under Art. 22(2) of the Indian Constitution.

The provisions relating to the grant of bail are enshrined in Chapter XXXIII, under Sections 436-450 of Cr. P.C

Section 437 of CrPC provides that if it appears to officer-in-charge of the police station at any stage of the investigation, there are no reasonable grounds for believing that the accused has committed a non-bailable offence, subject to provision of 446, the accused shall be released on bail, or execute bond by him without sureties for his appearance.

Bail with Surety

Bail with sureties is the release of a person from arrest or detention on condition that when release is made with surety, then surely must guarantee the attendance of the offender before the court.

Anticipatory Bail Section 438 CrPC.

It is introduced by the 41st Report of the law commission. It is bail in anticipation of arrest. When a person has an apprehension of arrest on accusation of committing a non-bailable offence, An application has to be filed through section 438 of CrPC in Sessions or High Court.

Case laws

  • Rasiklal .v. Kishor Khanchand Wadhwani (2009)

The Court held that in the case of bailable offences, the arrested person's right to claim bail is absolute and indefeasible.

  • Rupa Alias Rampur .v. State of Madhya Pradesh 2012 CRI.LJ.320

In this case, the Court held that the Right to bail comes under Art.21 of the Constitution of India. Hence, seeking bail u/s 438/439 of CrPC is undoubted plays an important role in invoking Article 21.

  • Hussainara Khatoon & Ors .v. Home Sec, State of Bihar AIR 1979 SC 1360

Here, the Court observed that the ratio when a man is in jail for a period longer than the sentence, he is liable for then he should be released.

  • Satyahari Chowdhary .v. State AIR 1953 Cal 661

It was held in this case that when an accused is brought before the court, there must be some proceedings even though neither any charge sheet nor any complaint is filed against him. It was also observed by the court that such a person could apply for bail if the provision Sec 436 of CrPC is attracted. The court has to release such accused on bail as their right.

  • Gurbaksh Singh .v.State of Punjab

It was held in the above case that ordinary bail is granted after arrest whereas anticipatory bail is granted in anticipation of arrest.

  • Shahul Hameed .v. State of Kerala

The Court rejected the bail on the ground that if bail is granted, there is a possibility of tampering the evidence by the petitioner. Hence the Court rejected the Bail.


When a person is accused of committing a crime and is arrested, he/ she has a legal right to apply for the bail. CrPC has laid down certain rules which should be followed by the court to grant or refuse the bail application. A person applying for bail gives surety that he will be brought to the court whenever required. Although a Bail is a right, it is solely based on Courts to decide whether to grant bail or not, depending upon facts and the circumstances of the case.


Pooja Dilip Pawar is currently pursuing Law at NBT Law College, Nashik.

They can be contacted at poojapr041997@gmail.com

Edited By: Swathi. Ashok. Nair.


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