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The origin of the term Bail has been derived from a French terminology – “Baillier” meaning to be in control or guard something . Indian Law commission has defined bail as a release of a person temporally from custody due to his/her suspect in crime this is known as judicial interim release of


The origin of the term Bail has been derived from a French terminology – “Baillier” meaning to be in control or guard something[1]. Indian Law commission has defined bail as a release of a person temporally from custody due to his/her suspect in crime this is known as judicial interim release of an accused. A person is momentarily released on bail with security and surety. Here the security is referred to as the amount given in order let out of jail, it is a personal bond. Surety means that the person has to make sure the police that he/she will not leave the country in order to run away from the proceedings and is required for appearance whenever possible.

Understanding Immunity and Impoundment

Immunity is a privilege provided by the government or a statute that exempts a person from a legal obligation, prosecution, or punishment. Taking something away from someone because you have the legal authority to do so is known as impounding. Bail is considered a boon or a bane, it is different for various people. Here whether bail is freedom or restriction is not considered in various ways. Immunity is freedom while Impoundment is restriction. Some people take it as a relief while other are constrained to it because of the security and surety they are made to give. The concept that bail is the norm and jail is the exception is reiterated, along with the notion that arrest is a harsh action that could result in liberty restrictions.

Bail Jurisprudence

In general, the legal system seeks to strike a balance between the accused’s rights and the need to protect the public and reduce the risk of flight. In determining whether to grant bail, judges consider several variables, including the seriousness of the crime, the likelihood that the accused will appear in court, and the threat the accused may pose to society. Bail can be issued with or without conditions, such as the obligation to post a bond, give up a passport, or show up at a set place on a regular basis.

Understanding the problems with criminal law and the crucial component of bail reforms is not challenging in India. The vast majority of India’s criminal laws are still vestiges of colonial rule. An average citizen is negatively impacted by bail rules and practices, and it damages him the most. The current bail mechanism in India is ineffective and insufficient. It is high time to concentrate on reforming some areas of Indian criminal law, which includes the bail system. Bail is the colloquial phrase for the temporary release of an accused person pending the outcome of a criminal case.


Depending on the specifics of the case and the facts, an accused individual may be granted one of the various sorts of bail in India. These are the bail types that are most frequently used:

REGULAR BAIL – A person who is taken into custody or arrested in relation to a crime for which there is no set amount of bail is given regular bail. The court has the ability to issue this kind of bail and may impose restrictions.

ANTICIPATORY BAIL – is a type of pre-arrest bail that may be given to someone who has cause to think that they will be detained in connection with a crime for which there is no possibility of posting bail. The High Court or the Sessions Court may award this kind of bail, but it is subject to various conditions.[2]

INTERIM BAIL – While the ordinary bail application is being processed by the court, interim bail is given for a brief period. When the accused is critically ill or must attend to pressing family affairs, for example, this form of bail may be granted.


The Code of Criminal Procedure, 1973 (CrPC) [3]and other pertinent legislation govern India’s bail rules. The Indian legal basis for granting and refusing bail is provided by the CrPC.

A person suspected of a crime who has been arrested and is being held in custody while the trial or investigation is ongoing may be granted bail under the CrPC. The granting of bail is nevertheless subject to a number of requirements and limitations. Bailable and non-bailable offences are the two categories into which the CrPC classifies the offences. Offences that are subject to bail are those for which the accused is automatically eligible to be released on bail, whereas offences that are not subject to bail are those for which the court may decide to grant bail. The accused must ask the court for bail in cases when it is not available.[4]

Section 2(a) CrPC[5] Bailable offences are included in Section 2(a) of the Code of Criminal Procedure (CrPC). This section defines “bailable offence” as an offence that is listed as being subject to bail in the First Schedule or that is made bailable under any other currently in effect statute. The CrPC’s First Schedule outlines how offences are categorized as being subject to bail or not. The offences that are specified as being bailable in the First Schedule are those for which bail is automatically available.

The CrPC also addresses and outlines the steps and regulations for bail under Sections 436 [6]to Section 450[7].


Bail is typically regarded as a type of liberty because it enables an accused criminal to be let out of custody while they await trial. The bail sum will be restored to the accused or the person who paid it if the accused person makes the requisite court appearance. Bail money may be forfeited and an arrest warrant may be issued if the accused fails to show up for court as scheduled. The benefit of bail is that by releasing an accused individual from detention while they await trial, bail enables them to continue working, take care of their family, and prepare for court. In rare circumstances, bail may be granted subject to requirements that ensure the accused will appear at trial and safeguard the community, such as ordering them to give up their passport or routinely report to a police station.

It’s important to keep in mind, though, that in some circumstances, posting bail might also be viewed as a sort of impoundment. For instance, even if a person is not deemed a flight risk or a danger to the community, they could be required to stay in jail until their trial if they are unable to pay their bail. The inability to post bail might be viewed in this way as a type of impoundment or detention. Bane-The bail procedure in India can be difficult, time-consuming, and expensive, especially for individuals who are unable to pay the cash money or retain an attorney. The public’s confidence in the court system can be damaged and perceptions of injustice can result from the abuse of the bail system, such as when influential people or those with connections are released on bond despite facing serious accusations.

Depending on the specifics of the case and the viewpoint of the person concerned, bail in India can be both a blessing and a curse. In conclusion, while bail can be an advantageous legal instrument, it is not always available to or equitable to all accused parties, and the integrity of the system depends on how properly and consistently it is applied.

Author(s) Name: Mehak Verma (Indian Institute of Management, Rohtak)


[1] Salman Khurshid, Taking Bail Seriously (Reprint 2022)

[2] The Code of Criminal Procedure 1973, s (438)

[3] The Code of Criminal Procedure 1973

[4] Satender Kumar Antil vs Central Bureau Of Investigation [Miscellaneous Application No.1849 Of 2021 In Special Leave Petition (Crl.) No.5191 Of 2021

[5] The Code of Criminal Procedure 1973, s 2(a)

[6] The Code of Criminal Procedure 1973, s (436)

[7] The Code of Criminal Procedure 1973, s (450)