Bail and Types of Bail under CrPC

Bail and Types of Bail under CrPC

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Introduction of the Bail and Types of Bail under CrPC: – The word “bail” comes from the French term “bailer,” which means “to give or deliver”. Bail is a legal phrase that relates to an alleged perpetrator’s interim release from custody. To put it another aspect, bail is a type of surety for the accused. In this article,  you’ll discover more about bail under the Indian Crpc in this article.

Provisions for Bail As per the Indian Constitution

Art. 21, the Constitution of India gives everyone the right to life & personal liberty. Unless proven guilty, a person shall be deemed innocent. As a result, the accused may not be deprived of his or her liberty unless a fair and equitable procedure is initiated.

Bail Provisions Under CrPC

The Criminal Procedure Code of 1973 contains no definition of the term “bail.” Furthermore, sec.  436-450 of the CrPC specify bail provisions. The CrPC’s first schedule also states which offences are bailable and which are not. Non-bailable offences are considerably more serious offences.

In the case of a bailable offence, 

The bail provisions of the law in bailable offences are dealt with in Sec 436 of the CrPC. This clause is mandatory, neither the police nor the court has any discretion(authority) over it.

Vaman Narayan Ghiya vs. Rajasthan State

The Supreme Court has ruled that no court has the jurisdiction to grant bail u/s 436 of the Criminal Procedure Code unless security is requested.

2005 amendment to the CrPC abolished sureties in the case of indigent(poor)  people.

Bail in  Non-Bailable Offence

Sec. 437 of the CrPC deals with bail legal provisions for non-bailable offences. It is entirely up to the court’s discretion (other than the H.C & Sessions court).

Kalyan Chandra Sarkar vs. Rajesh Ranjan

The Supreme Court ruled that the accused’s detention (confinement) in non-bailable offences can’t be questioned as an infringement of Article 21 of the Constitution.

Bail Stages or Bail Types

Anticipatory Bail

Before an arrest is made, anticipatory bail is filed. In other words, it’s also referred to as “pre-arrest bail”. The accused who is about to be arrested can file an anticipatory bail plea with the High Court of the appropriate state u/s 438 of the CrPC. Anticipatory bail is frequently in the media, and politicians, public figures, journalists, and others frequently use it.

Bail on Arrest

This is filed after the alleged perpetrator is apprehended (arrested). The arrested person may apply for bail in court u/s 437 of the CrPC.

Bail for a convicted person

This is filed by the court after the offender has been found guilty, and there is an appeal that lies against the same. When an accused has been condemned by a court and has filed an appeal, the accused may request bail to the appellate court.

Default bail

If the charge sheet is not presented to the court within the specified time limit, or if the police investigation is not concluded within the given time limit, the suspect is legally entitled to default bail.

Interim Bail

Lal Kamlendra Pratap Singh v. State of Uttar Pradesh

The phrase “interim bail” is not described in the Crpc. In 2009, the Apex court established the concept of interim bail, simply stating that interim bail should be provided pending disposition of a bail plea because confinement and apprehend of an individual may outcome in irrecoverable damage or loss.

Rukmani Mahato vs. State of Jharkhand, 2017

The Supreme Court was made aware of the abuse of interim bail in this case. S.C. had expressed serious concerns about allowing regular bail based on the superior court’s pre-arrest/interim bail.

Benefits/advantages of Bail

The following are some of the most significant advantages of granting bail: –

  • One can go to his or her job.
  • One can be well-prepared for a trial.
  • One’s name & reputation can be protected.
  • Liberation from the jail’s unsanitary conditions.
  • Freedom from the exhaustion of serious criminals.
  • Freedom & liberty from officers’ inhumane treatment.
  • A person can meet with his or her advocate at any time.
  • Family bonds & obligations and responsibilities can be managed to maintain.

Disadvantages/ Drawbacks of Bail

The following are the primary reasons for granting bail: –

  • The state bears the financial burden.
  • The accused’s reputation suffers as a result.
  • People have negative attitudes toward the accused family, making it difficult for them to adjust to civilised society.

Cancellation of Bail

If the suspected perpetrator/offender infringes any of the court’s terms, bail can be revoked or cancelled at any time u/s 437 (5) of the CrPC. Either the state or the aggrieved party can file a bail cancellation application in court.

Requisitions for the granting of bail

In May 2021, the M.P. High Court decided that the District courts system is extremely tight screwed in issuing bail, and issued the following rules for issuing bail to judicial authorities & police officers, which are as follows:-

Directions to Police Officers Considering Bail

When the maximum punishment for an offence is up to 7 years in prison, the offender may not be apprehended by the police as a preventative measure, until there is a specific statute law that necessitates it.

Before making an arrest in such a circumstance, the police would record the grounds & reason  for the arrest: 

Before making an arrest in such a circumstance, the police would record the grounds & reason for the arrest:  To simply prevent the alleged perpetrator from committing any further crimes, or for the appropriate investigation of the case, or to deter the alleged perpetrator from causing the abrupt disappearance of evidence, or most likely based on a credible accusation that the alleged perpetrator would destroy or tamper with evidence or prevent   testimony from testifying,

The State Police are required by section 41(1)(b)(ii) of the CrPC to format and create a list of pre-conditions before arresting an accused of offences with a possible punishment of up to 7 yrs. With the remand application, a replica of the list must always be presented to the Magistrate who has jurisdiction to remand the alleged perpetrator to officers or judicial custody.

If the police do not apprehend the offender within 2 weeks of lodging the FIR, the Magistrate should be notified. In rare cases, the Senior officer has the authority to prolong this period, which must be recorded in writing.

If the accused has to be questioned, a notice u/s  41A CrPC or sec. 160 CrPC should be issued to him or her within 2 weeks of the FIR being filed, which may be extended by the Officer in Charge of the district primarily concerned for grounds to be recorded in writing.

If the accused person appears before the authorities on notice u/s 41A or sec. 160 CrPC and aids the officers in the process of the investigation, the officers should not apprehend the accused except there are sufficient grounds which should be recorded.

Let’s assume the officers don’t follow the rules. In that particular instance, they would be held in contempt of court, furthermore to any other legal action taken against the erring officer.

Instructions for Bail to Judicial Magistrates

The Magistrate should evaluate whether the detention made by the officers satisfies the requirements of sec.  41 of the CrPC while exercising remand powers, as mentioned in Arnesh Kumar’s case.

As the Supreme Court stated in Arnesh Kumar’s case, the Magistrate must evaluate if the list of requirements is currently available.

Let’s suppose the officers refuse to cooperate with Arnesh Kumar’s case. In that circumstance, the Magistrate may not detain the accused in custody any longer and must release him promptly, as the detention is illegal in & of itself. As a result of the officers failing to implement the provisions of Sec 41 of the Crpc, & the accused detention would also be illegal.

As per Arnesh Kumar’s decision, the Magistrate granting imprisonment must record his impartial satisfaction and ensure that his satisfaction for the accused’s further remand is included in his judicial custody order.

The Magistrate should also decide whether particular reasons for the accused’s detention have been recorded and if those grounds are sufficient & adequate to support a reasonable conclusion that one of the grounds for the accused’s prolonged detention as an undertrial has been fulfilled.

If the Magistrate fails to comply with the terms of this ruling, administrative proceedings against him or her may be commenced.


The authority granted to the police to make arrests has become one of the most lucrative sources of income for officers. It has become a useful weapon for those with nefarious motives.

Courts, particularly district courts as well as courts subordinate to them, are hesitant to grant bail to the accused because Judicial Magistrates are concerned that they will be questioned by higher courts or that a vigilance case would be filed against them.

In such circumstances, the offender applies to a higher court for bail, causing overcrowding in the court system. As a result, Judicial Magistrates of the District Judge level & below must follow the directions made by H.C and Supreme Courts while determining bail decisions.


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Trial of Summon cases under CrPC 1973

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