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All people are guaranteed the protection of life and individual liberty under Article 21 of the Indian Constitution. In turn, this provides us the ability to request bail when we are detained by any law enforcement agency. It guarantees the fundamental rights to live with human dignity and in freedom.

In 1973, Section 438 of the Code of Criminal Procedure was established, establishing the anticipatory bail provision (hereinafter referred to as CrPC or Criminal Procedure Code). It is based on the Law Commission of India's suggestion, which was made in its 41st report, to include a mechanism for anticipatory bail. The said report stated as follows: “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him to first to submit to custody, remain in prison for some days and then apply for bail.”


Basically, when a person is detained or arrested, he can apply for bail to get a release.

The term 'bail' can be described as a form of security for release. And it's regarded as the release of an accused on the basis of a provision in a criminal court case where the final verdict is still pending.

The goal of an arrest is to ensure that the accused in a criminal case arrives in court for the administration of justice; but, if the accused's appearance can be guaranteed for trial, it is deemed unfair and unjust to imprison them. As a result, the accused may be given bail as a conditional release.


The Criminal Procedure Code, 1973[1] does not define the term "bail." Only the terms "Bailable Offense" and "Non-Bailable Offense" are specified in Section 2(a) of the CrPC. Section 436-450 of CrPC contains provisions relating to bail and bail bonds.

Section 436 states: A person accused of a bailable offence has the right to be released on bail at any time while under arrest without a warrant and at any stage of the proceedings.

Wrt non-bailable offences, a person accused of a non-bailable offence can be granted bail if he doesn’t fulfil certain conditions. In special instances, such as when the accused is a youngster, a woman, or a sick person, the law offers special regard [Section 437(1) CrPC].

In Kalyan Chandra Sarkar v. Rajesh Yadav[2] it was noticed that: The court issuing bail should use their discretion judiciously and not as a matter of routine. It has been defined under section 437A of the CrPC that in order to appear before the higher court and when the higher court issues a notice against the court's judgement, the trial court or the appellate court must ask the accused to complete a bail bond with sureties.

Types of bails:[3]

- Regular bail: Sections 437 and 439 of CrPC allow an accused to petition for this bail. The court orders that a person who has been arrested be released from police custody after paying the bail sum.

- Interim bail: This is a court order that the accused be released on temporary and short-term bail while his regular or anticipatory bail application is underway.

- Anticipatory bail: A direct order from the Sessions or High Court to offer pre-arrest bail to a suspect. When a person suspects that they will be arrested, they might seek anticipatory bail.

Section 438: Anticipatory bail is defined by this section of CrPC, which states that where the court believes that the accused is wrongly implicated in the case and that arrest would jeopardise his honour and dignity, the court may issue anticipatory or pre-arrest bail to the accused.


- There must be a reasonable concern of arrest- The court will only grant pre-arrest bail if the person proves to the court that he is falsely implicated in the case.

- Non-bailable offences - Only non-bailable offences are eligible for pre-arrest bail.

- The application must be submitted prior to the accused's arrest.

Both the session court and the high court have the authority to grant anticipatory bail, but according to the plan of action, the application for anticipatory bail must be filed in the session court first, and if it is denied by the court, the accused can appeal to the high court.

Important case laws wrt anticipatory bail:

- Sushila Agarwal vs. State[5]: The Supreme Court ruled that anticipatory bail should not be granted for a set period of time, but that the court has the authority to limit the duration of anticipatory bail if an unique circumstance requires it.

- Gurbaksha Singh Sibbia and others vs. the State of Punjab: The SC ruled that:

o The CrPC has no provision for the granting of pre-arrest anticipatory bail to be time-limited.

o The concerned court has the authority to impose conditions for the grant of anticipatory bail, such as a restricted duration of protection, among other things, after taking into account any particular circumstances.

Cancellation of bail:

The court that granted bail can cancel it if it is judged necessary under certain conditions, according to Section 437(5) of the CrPC. The Sessions Court, High Court, or Supreme Court can cancel the accused's bail and take him into custody suo moto, according to Section 439(2). An appellate court can also cancel the accused's bail and order that he or she be arrested and held in custody under Section 389(2).


To conclude, it can be mentioned that skepticism must come first, followed by proof, but the presumption of innocence must also be maintained. The concept of granting bail was developed with this concept. It has proven to be a viable solution for saving an innocent guy from spending time in jail before his trial, as well as allowing him to improve his case preparation while allowing the lawyer to have a thorough understanding of the case. Sections 436, 437, 438, and 439 of the code lay out the fundamentals of bail.

This article is written by Janhavi Jadhav of Symbiosis Law School, Pune.

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