“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
The concept of bail:
Bail may be referred to, a well recognized concept under Indian criminal jurisprudence, as a provisional
release of the accused in a criminal matter under which the court is yet to pronounce a judgment.
In its literal sense it means a security deposited to appear before the court for release. The term ‘bail’
belongs to and has been derived from the French word ‘bailer’ which means ‘to give’
The law lexicon defines bail as the security for the appearance of the accused person on which he is
released pending trial or investigation. What is contemplated by bail is to “procure the release of a person
from legal custody, by undertaking that he/she shall appear at the time and place designated and submit
him/herself to the jurisdiction and judgment of the court”
Bail under Indian law:
The provisions regarding the bail and bonds have been specified from sections 436 to 450 of the code of
criminal procedure, and is based upon article 21 of the Indian constitution which guarantees the right to
life and personal liberty. The Indian legal system recognizes the only the following 4 kinds under the code
of criminal procedure:
- Bail in bailable offences : sec 436 which lays down the circumstances in which the bail can be
granted. Sec 436 grants bail as a matter of right because as per law in bailable offences bail is a
right and not a favor. As stated by the Bombay High court that in bailable offence the accused is
entitled to bail, even if he does not make an application for the same.
- Bail in non bailable offences: sec 437 bestows the Court and the officer in charge of the police
station who has arrested or detained the person accused or the suspect of a non-bailable offence,
to consider the question of bail, and grant the same in case of non bailable offences.
Section 437, Criminal Procedure Code, deals with the powers of the trial court and of the
Magistrate to whom the offender is produced by the police or the accused surrenders or appears,
to grant or refuse bail to person accused of, or suspected of the commission of any non-bailable
offence. Here grant of bail is not the right of accused but a matter of discretion of court.
- Anticipatory bail: sec 438 of Cr.P.C. deals with anticipatory bails. any person who is under the
apprehension of being arrested on the accusation of a non-bailable offence can prior to such
arrest, apply to the High Court or Court of sessions and the Court may do as it deems fit in the given circumstances. The Court may also impose certain conditions as mentioned under section 438(2).
4. Interim bail: Sec 439 deals with the High Court’s and the Sessions Court’s power to release the
accused on bail in custody. It expressly provides for interim bail pending disposal of the plea for
anticipatory bail. Also, this provision is in alignment with Article 21 of the Indian Constitution.
Apart from the bails as above stated, we have a few more provisions under law that allow an accused
to be outside the jail during his sentence, however the same maybe subject to certain conditions.
These provisions are that of: Parole Probation
Parole is a system of releasing a prisoner with suspension of the sentence. The release is
conditional, usually subject to behavior, and requires periodic reporting to the authorities for a set
period of time. Parole is considered a reformative process. The provision (along with furlough)
was introduced with a view to humanizing the prison system.
Probation of offender is yet another way to deal with the accused without actually putting him
behind bars. Probation refers to the time given to the accused before he is sent to jail, based on his
conduct, good behavior and clear previous records, to prove that he wants to rehabilitate.
However, benefit of these provisions cannot be extended to a person who was indulged in an act
which was resulted into an explosive situation. The concept is embraced under the Probation of
Offenders Act, 1958.
Apart from this furlough is concept broadly similar to parole, but with some significant
differences. Furlough is given in cases where the accused is under some long-term imprisonment.
The period of furlough granted to a prisoner is treated as remission of his sentence. In long term
imprisonments, this is considered as a matter of right of the prisoner without any reason. The
major objective of furlough is to allow the prisoner of keep in touch with his family, retain his
social connections and also to beat the ill-effects of such a long term of imprisonment.
Nevertheless the purpose and basis of bail is, more or less similar but there are a few differences that
prevail in these different forms of bail. The difference can be seen as under:
1. When we talk about the bail under sec 436, it simply enlists the circumstances in which bail can
- be granted. On the other hand under sec 437, the court and the specific authority(officer in charge of police station who has arrested or detained the person accused or the suspect of a non-bailable
offence) to consider the question of bail.
2. We can also understand the same from the language used in the two provisions that sec 436 and
sec 437 deal with bail when the offence has already been committed or is alleged to have been
committed. On the other hand sec 438 talks about bail when the person is not arrested yet but is
under fear of such arrest.
3. Sec 436 and sec 437 are not based on apprehensions unlike sec 438. Sec 438 is a forward looking
provision and provides advance remedy for an act that is yet to happen.
4. Bail is a matter of right for bailable offences and is not a favor or discretion of the court. However
for the application of bail in case of non-bailable offence or an application of anticipatory bail it
is the discretion of the court to grant bail or reject the same. The court is also free to impose
conditions with such grant.
Hence, as seen above the kinds of bails under the Indian legal system are comprehensive and aim for the
- protection of justice.