bail crpc

BAIL under Code of Criminal Procedure

Code of Criminal Procedure Criminal Law LAW EXPLAINED
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The word ‘bail’ has been derived from very old French verb ‘bailler’ which means to ‘deliver or give’.  Although the word bail has nowhere been defined in the Crpc it is often used in the Crpc and remains one of the vital components of the criminal justice system as well as in a relation of fundamental rights if citizen.

The main objective of bail is to assure that the convict will appear in front of court whenever the court demands and also that innocent should not be behind bars. The concept  related to bail has been discussed in Chapter-XXXIII, from sections-436-450. The offences in Crpc have been classified into bailable, non-bailable, cognizable and non-cognizable. The power related to bail like grant of bail, terms and conditions related to bail and cancellation of bail have given to the officer in charge of the police station, magistrate, Session court and High Court.

The provisions related to bail and bonds:

  • Sec 436: In what cases bail to be taken[1]
  • Sec 436a: What is the maximum period for which an under trial prisoner can be detained[2]
  • Sec 437: In which cases bail may taken for committing Non-bailable Offence
  • Sec 437a:   Why a bail required? So that the accused appear before the Next Appellate Court.
  • Sec 338: Directions for grant of bail to person apprehending bail[3]
  • Sec 439: What are the special power or High Court and Court of Session Regarding bail[4]
  • Sec 440: What is amount of bond and reduction theory[5]
  • Sec 441: Bond related to accused and sureties[6]
  • Sec 441A: Declaration made by the Sureties[7]
  • Sec 442: When the person is discharged from custody[8]
  • Sec 443: power to order sufficient bail when that first taken is insufficient[9]
  • Sec 444: discharge of sureties[10]
  • Sec 445: deposit instead of recognizance[11]
  • Sec 446: procedure when bond has been forfeited[12]
  • Sec 446A: cancellation of bail and bail bond


The Code of Criminal Procedure has divided bail into various categories:

  • Bail under bailable offence
  • Bail under non-bailable offence
  • Anticipatory bail
  • Ad interim bail
  • Bail after conviction
  • Bail on default

Bail under Bailable offence

This concept has been discussed in section-436 of Crpc. This provides the release of a person on bail who has committed a bailable offence. It is mandatory police and courts have no discretion in this matter. The only discretion that the police have in this matter is that whether to release the person on bail is with or without sureties. And if the person is unable to produce bail then he has to presented before the magister within 24 hours according to section-57 of Crpc. And if the person wants to furnish his bail then magistrate has to grant him bail but it’s the discretionary power of the magistrate whether to release the person on bail with or without sureties

Bail under non-bailable offence

The provisions related to bail under non-bailable offences are present in section-437 of Cprc. It gives discretionary power to court (other High Court or Court of Session).  When bail may be granted in case of non-bailable offence:

Sec-437(1): When the accused or suspected person committed of non-bailable offence. Accused arrested or detained without warrant. Except in cases:

  • He has Committed offence shall not be punishable with death or life imprisonment.
  • He shall not be previously convicted.[13]

Sec-437(2) no reasonable ground then to grant of bail[14]

Sec-437(3): The conditions may be imposed in the following cases.

Accused suspected of the commission of an offence which may extend to 7 years imprisonment or under IPC. Three conditions are:

  1. Shall attend the court.
  2. Not commit similar offence
  3. No inducement, threat or promise.[15]

Sec- 437(4): given reason in writing by the court to grant bail or not.[16]

Sec-437(5):  cancellation of bail re- arrest and commit him to custody[17]

Sec-437(6): if the trail is not conducted within 60 days.[18]

Sec-437(7): reasonable grounds for believing that the accused is not guilty, it shall release the accused.[19]

Anticipatory Bail

Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends arrest under non-bailable offence in India can apply for Anticipatory Bail under the provisions of section-438 of the Crpc. The words anticipatory bail is neither found in section-438 nor in its marginal notes.

Ad Interim Bail

If a person apprehends/feels that he might be arrested, then he may apply for anticipatory bail. In general Regular bail is applied by a person after his arrest. Interim bail is more like a temporary bail which may be granted till the time your application for an anticipatory bail or regular bail is pending before a Court.

Bail on Default

Section-167(2) of the Crpc empowers the judicial magistrate to authorize custody of an accused person in cases wherein investigation cannot be completed in 24 hours. It provides for the maximum period of custody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of the accusation against him.[20]

Bail after Conviction

Section-389 (1) and 92) of Crpc deals with a situation where a convicted person can get bail from appellate court after filing the criminal appeal. Section-389 (3) deals with a situation where the trial court itself can grant bail to convicted accused enabling him to prefer an appeal.[21]


[1] Sec 436 of the Criminal Procedure Code, 1973

[2] Sec 437 of the Criminal Procedure Code, 1973

[3] Sec 438 of the Criminal Procedure Code, 1973

[4] Sec 439 of the Criminal Procedure Code, 1973

[5] Sec 440 of the Criminal Procedure Code, 1973

[6] Sec 441  of the Criminal Procedure Code, 1973

[7] Sec 441 of the Criminal Procedure Code, 1973

[8] Sec 442 of the Criminal Procedure Code, 1973

[9] Sec 443 of the Criminal Procedure Code, 1973

[10] Sec 444 of the Criminal Procedure Code, 1973

[11] Sec 445 of the Criminal Procedure Code, 1973

[12] Sec 446 of the Criminal Procedure Code, 1973

[13] Sec 437 of the Criminal Procedure Code, 1973

[14] Sec 437(2) of the Criminal Procedure Code, 1973

[15] Sec 437 (3)  of the Criminal Procedure Code, 1973

[16] Sec 437(4) of the Criminal Procedure Code, 1973

[17] Sec 437(5) of the Criminal Procedure Code, 1973

[18] Sec 437(6) of the Criminal Procedure Code, 1973

[19] Sec 437(7) of the Criminal Procedure Code, 1973

[20] Code of Criminal Procedure,1973

[21] Indian

This blog is written by Pragya Sharma, Amity University.

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