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The efficiency with which “Law & Order” is kept up there serves as the cornerstone of a safe state. Punishing a criminal is one technique to make sure that law and order are effectively maintained in the state. However, the accused cannot be punished unless the court has treated his trial fairly and


The efficiency with which “Law & Order” is kept up there serves as the cornerstone of a safe state. Punishing a criminal is one technique to make sure that law and order are effectively maintained in the state. However, the accused cannot be punished unless the court has treated his trial fairly and justly. The accused is also deemed innocent until after a trial until he is proven guilty, which is one of the fundamental foundations of criminal law. Therefore, keeping an accused person in custody while criminal procedures against him are pending would be unfair and against the fundamental principles of the criminal justice system.

Even though he is deemed innocent until proven guilty, such confinement, if permitted, would subject him to the psychological and physical hardships of prison existence. In such a circumstance, the fundamental idea of “presumption of innocence of an accused” would lose its entire meaning.

As a result, the penal code includes a provision for “Bail” to protect the accused from such irrational actions. “To secure a person’s release from legal custody by promising that he shall appear at the time and location specified and submit himself to the authority and judgement of the court,” is the definition of “bail.” Bail seeks to ensure that the accused will appear at his trial while not excessively restricting his freedom. However, the law of bail must strike a balance between the two situations. On the one hand, it would be wrong to release an accused person on bail if they were likely to hinder a fair trial by destroying evidence or conducting additional crimes while they were free. On the other hand, it would be harsh and improper to grant the arrested individual bail if there are no such risks associated with his release.


In India, the bail law is governed by CRPC under Chapter XXXIII (S. 436-S.450); but the term bail has not been defined in it. It only distinguishes offences as “bailable and non–bailable”.

The BLACK LAW DICTIONARY defines Bail as security money or bond especially security required by a court for the release of an accused who must appear before the court at a future date.

WEBSTER’S LAW DICTIONARY defines Bail as a temporary release of the accused in exchange for security given by the accuse in exchange of security given by accused to the court for a later hearing.

What Differentiates Bailable And Non-Bailable Offences


Acc. To Sec 2(a) CRPC, these offences are less serious, hence the punishment is less serious and it is the legal right of the accused to request bail.

Generally, these types of offences are punishable by less than 3 years.


The term non-bailable offences do not tell us that bail will not be granted.

Simply, it states that the accused does not have the right to demand it at the time of their arrest or custody.

However, they have the right to approach the court while they are in custody. Unlike bailable offences, these offences are serious. The punishment in the case of non-bailable offences is 3 years or more. Courts, however, decide to grant bail to the accused in non-bailable charges. And police officers in charge can also grant bail on non-bailable offences.


Regular Bail

A police officer can detain a person who has committed a non-bailable offence without any warrant or can initiate an inquiry without the court’s approval. And police may take him into custody.

Under Sections 437 and 439 of the Criminal Procedure Code, the accused has the right to be released from this type of confinement. So, to ensure the presence of the accused at trial a regular bail is proposed.


This type of bail is available for a temporary purpose and is only applicable when the application is ongoing or when the court is taking steps on anticipatory or regular bail.

If interim bail expires before the regular bail or anticipatory bail is given the person loses his right to be free and may be taken into custody. Interim bail can always be extended and is not mandatory.


In this type of bail, the bail is given to the person before his arrest on a non-bailable offence. The Court of Sessions and the High Court both can issue anticipatory bail.


This refers to the power of the appellate court to grant bail to the accused after being convicted. Section 389(1) and 389(2) says that the grant the bail by the appellate court when the criminal appeal has already been filed in the court by the convict and before the court, the appeal is pending. Section 389(3) states that on satisfaction the trial court can grant bail to the accused to file a criminal appeal against the said conviction. But these types of bail are for a limited time, i.e., till the appeal is filed and on filing the appeal it is for the appellate court to decide the bail.

Whether the offence is bailable or non-bailable, the appellate court has full discretion to grant it or reject it but it should be exercised judicially.


In our country, many sections are available for the smooth functioning of bail laws in India, but still getting ‘bail’ from higher authorities or courts has been quite an impossible task full of complexity in it for not all but many people.

The ground reality of our system is ‘jail has become a rule and bail as an exception’ but the Supreme Court has reiterated it time to time that ‘Bail is the rule and jail is an exception”.

There are valid reasons behind the poor system regarding the bail laws in India:


In our criminal system, the police often arrest the accused and put them in the custody on minute charges against them and which offences are bailable but the still the person is unable to get bail because he has no one to stand for his surety of bail and most of them are poor are unable to afford the bail amount.


The ability of the accused to provide “money” or “any property” as a bail bond determines whether or not bail will be granted, which is the second and most controversial aspect of our bail system. And if he is unable to do so, he may ask others to act as sureties for him. However, the “surety” must be someone who can provide a bond when necessary for money or property as determined by the relevant judge. This means that the entire bail system discriminates against the poor, who may have committed a minor offence but are still unable to obtain bail; in contrast, a financially stable person can obtain bail by providing the necessary Surety for the bail bond, even if the offence committed by him may have been more serious.


In addition to the aforementioned causes, the subordinate courts’ and even HCs’ tendency to automatically reject “bail applications” without considering their merits has also played a significant role in why most defendants remain in custody throughout their entire case, even for small offences.


One of the most important components of the criminal justice system is bail. According to Section 167(2) of the Indian Penal Code, “Bail” is both a statutory and basic right. Despite this, it has been difficult for the persons to obtain bail, which has violated their right to liberty guaranteed by Article 21 of the Constitution. As mentioned in the article above, our bail system has several flaws, including arbitrary arrest, prohibitively expensive bail, and the automated denial of bail requests without sufficient justification. Although the Supreme Court and the legislature have issued directives and provisions to lessen the suffering of an accused, particularly that of the poor, there is still a long way to go before a bail system can be developed that can meet the current needs of the nation given the number of prisoners who are awaiting trial who are housed in jails. The latest ruling by the Supreme Court provides a ray of hope in the current situation because, if fully implemented, it will start the necessary change in our criminal justice system.

Author(s) Name: Yash Jha (Dharmashastra National Law University, Jabalpur)