We have heard the phrase “Bail not Jail” number of times, without understanding what Bail means. Another phrase very commonly used by the Indian courts is “Bail is a rule and jail is an exception”. The latest example of this phrase being used, is in the case of Arnab Goswami when he was arrested in November 2020 and was denied Interim Bail by the Bombay High Court. It was then, Justice DY Chandrachud used this phrase while examining cases which involved matters of personal liberty. The Supreme Court in this matter rightly said that when common citizens are arrested by the police in criminal cases, the courts must come to the aid of undertrials kept in the police stations which is synonymous with insulting the human dignity of such undertrials.Hence, it is correct to understand that everyone should know about bail and its importance as it is the right of every arrested person in criminal offences. This article will focus on the definition of bail, its importance, the different types of bail, when is the bail granted etc.

Though the word “Bail” has been used in the Criminal Procedure Code, 1973, but it has not been defined anywhere. It is one of the most important concepts of the Criminal Justice system read along with the Fundamental rights of our Constitution as bail is a part of the human rights for every arrested person. As there is no set definition for Bail, it means “security for the appearance of a prisoner for his release.”
In India we have the case of Vaman Narain Ghiya vs State Of Rajasthan Criminal Appeal 406 of 2008, in which the Supreme Court said the following-“Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.”
Thus, what can be understood so far is that, bail is a tool through which the arrested person is not put in jail during the trial by giving him a temporary release from jail. At the same time the accused person who is arrested gives a surety and bond (security) to the court whereon he promises to court that he will be present and appear in the court during the hearing for his matter.
Thus, the security given by the arrested person to the court can be cash or papers to some property owned by the accused or bond of private person etc. This security is commonly known as Bail bond.
Under the Indian Criminal Law, Bail and Bail Bond comes under sections 436- 450 of the Criminal procedure Code, 1973.

Regular Bail- Granted to a person who has been arrested or is in the custody.
Interim bail- Granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
Anticipatory bail- Mentioned u/s 438 of CrPC. It is granted either by High Court or by Court of Sessions. An application for anticipatory bail is filed when a person apprehends his arrest for a non- bailable offence that he has committed.
Transit Bail- When a person of one state apprehends his arrest from the Police of another state wherein he does not reside for any criminal offence, and files for an application of bail, that is known as Transit Bail. This concept of Transit Bail is not to be found in the Indian statutes but it has been used as a legal precedent and has been used by the courts time and again.

There are 2 different types of offences in the Indian Criminal Law. These are as follows-
Non bailable offences
Bailable offences

The First Schedule of the Criminal Procedure Code, 1973 categorizes each offence as bailable and non-bailable.

Hence, it can be understood that if a person is arrested in an offence which is bailable as mentioned in the First Schedule of CrPC, and if he agrees to give the bail, then the Police officer has to (mandatory) release the arrested person on bail. This is mentioned u/s 436 of CrPC.

As mentioned above in a non-bailable offence, the person arrested can be released on bail based on the discretion of the court.
For every criminal case, a bail is a mandatory right of the arrested person if the charge-sheet has not been filed by the Police within 90 days in offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; and 60 days in all other cases.

In the case of a bailable offence the Police officer who arrested him or the concerned Magistrate’s court have to release the accused on bail. The only exception where the accused will not be released on bail is when the accused is not able to furnish the bail bond.

In Non Bailable offences, Magistrate, Court of Sessions has power to grant regular bail.

Anticipatory Bail can be filed either before Court of Session or the High Court. However, in practice, it is advisable to file your bail before the Court of Sessions being the First Court. In case of dismissal, you will have additional opportunity.


  1.  whether there is any prima facie or reasonable ground to believe that the accused had committed the offence
  2.  nature and gravity of the charge
  3.  severity of the punishment in the event of conviction
  4.  danger of accused absconding or fleeing if released on bail
  5. character, behavior, means, position and standing of the accused
  6.  likelihood of the offence being repeated
  7.  reasonable apprehension of the witnesses being tampered with
  8. danger, of course, of justice being thwarted by grant of bail

Above list regarding consideration of bail is certainly not exhaustive. And each case has its unique and peculiar facts and circustamces.

A surety is a third person who gives assurance to the court that the accused who has been released on bail will come to the court on the days required and that the accused will follow all the conditions imposed on him by the court while granting bail. Surety has been mentioned u/s 441 of CrPC. It is highlighted that only a natural person can become a surety and not any artificial person like a company. The surety has to pay money like fine, if at all the accused who was granted bail does not come to the court on the given date. But the main need for a surety is not pay the fine, rather it is the assurance that the surety gives that the accused will be present in the court. There can be more than one surety for one accused if the court feels necessary.

A Bail bond is nothing but a certain amount of money given by the accused to the court which acts as an assurance that he will come to the court on the given dates. But a surety on the other hand is third person involved by the court who gives a written assurance to the court that the accused out on bail will attend the court hearings.

The court  anytime during the pendency of the trial cancel the bail and take back the accused in the custody. This has been mentioned u/s 437 (5) and 439(2) of the CrPC. The magistrate court has the power to cancel the bail u/s 437 (5) of CrPC while the High Court and the court of sessions have the power to cancel the bail u/s 439 (2) of CrPC. There are two situations when the bail can be cancelled are:-

  • When the bail was provided to be accused by the court without application of the mind or when the release of the accused on bail is in violation of the procedural or substantial law of the land.
  • When the accused who got the bail has  misused such liberty given to him.
  • When the accused tampers with the evidence, is found guilty of a more heinous crime, or tries to threaten the witness, tries to flee the country etc.


There are mainly two types of custody- Judicial custody and Police custody.

Mentioned under section 438 of the CrPC, anticipatory bail means when a person apprehends arrest in some  non-bailable offence then he goes to court to file an application for anticipatory bail so that if and when he gets arrested for the same, then he can immediately come out on bail.
The only courts that a person can apply for anticipatory bail is either the High Court or the Court of Sessions. The following factors are taken into consideration by the court while granting anticipatory bail and these are as follows-
Nature and gravity of accusation
Previous imprisonment records of the applicant
The possibility of the applicant fleeing the country
Whether the accusation against the applicant could be false and the apprehended arrest could lead to humiliating the applicant.

Conditions as may be imposed by the Court while granting anticipatory bail are as under, though not exhaustive:-


  • That the accused will not leave the country
  • That the accused will make himself available on all days of the court hearing.
  • That the accused will not indulge in witness or evidence tampering.
  • Accused will not contact the complainant


In the case of Gurbaksh Singh Sibbia v. State of Punjab  Hon’ble  Supreme Court explained the difference between a regular bail and an anticipatory bail. It is as follows- “The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest”.

“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”. – Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)
Thus, what can be understood is that bail is not just a tool with which the arrested person can be set free from the custody but rather it is a matter of personal liberty and a basic human right of every arrested person. In India we follow that system of every accused is an innocent person until proven guilty beyond reasonable doubt. It is due to this school of thought that we also think that every accused should have the personal freedom and liberty to be free from any type of custody with certain restrictions in place during the pendency of the Trial till proven guilty. This is when the concept of Bail comes into light.

Written By – Pranitha Pai|Associate, ANZ LAWZ