Bail in Indian Criminal Law

Bail is the conditional release of an accused person pending investigation or trial. It stems from Article 21’s guarantee of “life and personal liberty,” which courts have held includes a right to reasonable bail relief when a person is detained. The Code of Criminal Procedure, 1973 (CrPC) regulates bail in Chapter XXXIII (Sections 436–450). Broadly, bail falls into the following categories:

• Regular bail (post-arrest bail): Release after arrest in a bailable or non-bailable case (Magistrate’s bail or Sessions/HC bail under Sections 437, 439).
• Anticipatory bail (pre-arrest bail): Direction under Section 438 for bail in anticipation of arrest for a non-bailable offence.
• Interim bail: Temporary bail for a limited period pending final disposal of a bail application (including interim anticipatory bail under Section 438(1)).
• Default/statutory bail: Bail as a matter of right under Section 167(2) when investigation is not completed within the prescribed time (60/90 days).

Each type has its own procedure, applicable court, required documents, and conditions. We discuss each in turn.

1. Regular Bail

• When to apply: After arrest on a criminal charge. If the offence is bailable, the accused has a legal right to be released on bail on request (CrPC §436). If the offence is non-bailable, bail is discretionary and can only be sought after arrest.
• Which court: Initially before the Magistrate who has jurisdiction. Under Section 437, a Magistrate (other than a Sessions Judge or High Court) may grant bail in non-bailable cases. If the Magistrate refuses bail, the accused can appeal to the Sessions Court or High Court (Section 439). Note: The High Court and Sessions have concurrent bail powers; they can set aside lower-court bail orders or grant bail directly if the accused is in custody.
• Procedure:
  1. Arrest/Detention: The accused is arrested or produced before the Magistrate. In a bailable case, the police must offer bail immediately (Sec 436). In a non-bailable case, the accused must apply to the Magistrate for bail under Sec 437(1).
  2. Bail Application: Prepare and file a formal bail application (petition) in court. The petition should state the facts (nature of offence, date of arrest, custody details) and grounds for bail (e.g. weak evidence, long custody, health, etc.). Attach copies of relevant papers (arrest memo, case diary summary, remand order, if any).
  3. Hearing: The court issues notice to the public prosecutor and hears both sides. The prosecution may argue that bail should be denied. The defense argues why bail should be granted.
  4. Decision: The court pronounces an order. If bail is granted, the accused signs a bail bond (with or without sureties) agreeing to appear as required. If denied, reasons are recorded and the accused remains in custody.
• Documents required: Bail petition/affidavit, arrest memo, custody remand papers, case documents (FIR, charge sheet excerpts if filed), identity/address proof of accused and proposed sureties, photographs, surety affidavits, undertaking to abide by court orders.
• Conditions imposed: Under Section 437(3), the Magistrate must impose reasonable conditions to ensure the accused’s attendance and prevent obstruction of justice. Typical conditions include:
  • Appear in court at all stages as required (bond condition)Not commit an offence similar to the one chargeNot tamper with evidence or intimidate witnesses.Surrender passport or not leave the jurisdiction without permission.Provide sureties and a bond to secure compliance.
  The court may also add any other condition deemed necessary (for example, house arrest, reporting to police station periodically, etc.). The reasoning for granting or refusing bail must be recorded.
• Example: Mr. A is arrested by police for theft (non-bailable). After 3 days in custody, his lawyer files a bail application before the Magistrate. The court hears the case and grants bail under Sec 437, directing A to furnish a personal bond and two sureties, with conditions not to tamper with witnesses and to appear on the next hearing date.
• Key CrPC sections: Section 436 (bailable offences), Section 437 (Magistrate’s bail in non-bailable cases), and Section 439 (Sessions/HC bail).
• Landmark cases: Hussainara Khatoon v. State of Bihar (1979) stressed that prolonged pre-trial detention violates Article 21, mandating release of undertrials detained beyond the legal limit. (While not a bail case per se, it underscores the fundamental right to liberty and prompt trial.) The Supreme Court has repeatedly held that bail decisions must be reasoned, not arbitrary.

2. Anticipatory Bail (Sec 438 CrPC)

• When to apply: If a person “has reason to believe” they may be arrested for a non-bailable offence, they can apply pre-arrest for bail. Common situations include fear of malicious prosecution or politically motivated charges. The application must be filed before arrest. Once arrested, the remedy is regular bail under Sec 437/439.
• Which court: Only the High Court or a Sessions Court can grant anticipatory bail. (Subordinate Magistrates have no jurisdiction for this; only appeal courts in criminal matters.)
• Procedure:
  1. Draft Application: The accused (through counsel) files an anticipatory bail petition under Sec 438, stating the facts of anticipated arrest and legal grounds (e.g. suspect targets, weak evidence).
  2. Interim Bail (optional): The applicant may request an interim bail order during pendency of the petition. If granted, this allows temporary release until the final hearing. The court will notify the Public Prosecutor of the interim order (minimum 7 days’ notice) as required by Sec 438(1-A).
  3. Notice and Hearing: If interim bail is granted, the court sets a date and gives notice to the Public Prosecutor/Superintendent of Police. At final hearing, both sides argue. The court may also hear police objections. The applicant’s presence at final hearing is usually required for justice.
  4. Decision: The court may either dismiss the petition or grant anticipatory bail. A grant will specify the conditions of bail and the duration (often until trial ends, per current law).
• Documents required: Petition/affidavit detailing circumstances, any supporting evidence (complaints received, police notices, etc.), surety proposals, identity/address proof.
• Conditions imposed: Under Sec 438(2), the court can impose any fair conditions, including (similar to Sec 437(3)):
  • Make oneself available for police interrogation as requiredNot intimidate witnesses or tamper with evidence.Not leave India without court permission.Provide a bond and sureties.Any other condition as appropriate (e.g. not contact co-accused).
  In Sushila Aggarwal v. Delhi (2020), the Supreme Court emphasized that anticipatory bail orders normally endure through trial and need not be time-limited unless special facts warrant it. Courts retain discretion to impose limited duration only if justified by the stage of investigation or other factors.
• Interim Bail: Often, courts issue an interim anticipatory bail upon the first hearing to release the applicant pending the final order. For example, the court may order bail for 10-15 days to bridge time for notice and final hearing. Once the final order is passed, the interim relief is subsumed.
• Example: Ms. X learns that a false FIR may be filed alleging a cognizable offence. She files an anticipatory bail petition in the High Court. The High Court grants interim bail for 10 days and serves notice. At the final hearing, it grants anticipatory bail under Sec 438, with X agreeing to cooperate in investigation and not leave the country without permission.
• Key CrPC sections: Section 438 (direction for anticipatory bail). (Note: Conditions for compliance are drawn from Sections 437(3) and 438(2).)
• Landmark cases: Gurbaksh Singh Sibbia v. State of Punjab (1980) is the foundational case on anticipatory bail, outlining that courts must balance personal liberty with investigation interests. Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) clarified anticipatory bail in the context of predicate offences and convictions. In Sushila Aggarwal v. NCTD (2020), the Supreme Court held that anticipatory bail is not inherently time-bound and that courts should not impose blanket duration limits.

3. Interim Bail

• Definition: A temporary bail granted for a limited time while a final bail application is pending. It prevents unnecessary detention between the time of arrest and the final disposal of the bail petition.
• When available:
  • As part of an anticipatory bail application (Sec 438(1) allows an interim order pending final hearing).
  • As part of a regular bail application: Courts often grant interim bail if the accused has urgent needs (medical treatment, family exigency, etc.) while awaiting a full bail hearing.
• Which court:
  • For anticipatory bail cases: Interim bail can only be ordered by the High Court or Sessions Court handling the anticipatory bail petition.
  • For regular bail cases: The Magistrate or higher court where the bail petition is pending may grant interim bail. High Courts can also grant interim bail under their inherent jurisdiction (Article 226) even if Section 437 petitions are pending.
• Procedure:
  1. Application: While seeking final bail, the accused requests interim bail in the same petition or as a separate interim application. Urgency grounds (health, family, etc.) should be explained.
  2. Order: The court may then release the accused on interim bail for a fixed short period (commonly 1–30 days) or until the final hearing date. The order will set an expiration date or condition for recall.
  3. Conditions: Interim bail orders usually impose strict conditions: bond and sureties, deposit of security, travel restrictions, daily reporting, etc., to guarantee appearance at the final hearing. The accused must comply or surrender at expiry to avoid cancellation.
• Conditions imposed: Similar to regular bail conditions (appearance, no tampering, etc.), plus any additional terms the court deems necessary for the interim period. Often courts require a higher bond or cash security for interim release.
• Example: Mr. Y is arrested and files a regular bail petition in Magistrate’s court. He has a major surgery scheduled in two weeks. The court grants interim bail for two weeks on heavy surety and a condition that Y must report daily to the police station. After two weeks, Y must return to court for the final bail hearing.
• Key case: In Sushila Aggarwal v. Delhi (2020), the Supreme Court highlighted that an interim anticipatory bail order must specify the period for which it is granted, and that the applicant must apply for regular bail once interim relief expires. The Court confirmed that interim bail is meant for short “stop-gap” relief and cannot be open-ended.

4. Default/Statutory Bail (Sec 167(2))

• When to apply: When an accused is in custody after arrest and the investigation is not completed within the statutory period. By law, investigation must ordinarily be completed within 60 days for serious offences (punishable by ≥10 years/imprisonment for life/death) or 90 days for all other offences. If the charge-sheet (report under Sec 173 CrPC) is not filed in this time, the accused is entitled to be released on bail as of right.
• Which court: The Magistrate to whom the accused is forwarded or who authorized the remand. (If the case has not yet been committed to Sessions or charge-sheet is pending, the Magistrate issues statutory bail.) Once the trial commences or charge-sheet is filed, bail falls back to Sections 437/439 or other provisions.
• Procedure:
  1. Check timeline: Calculate remand period (15-day periods); if exceeded 60/90 days without a charge-sheet, the accused qualifies for default bail.
  2. Application: The accused (or counsel) must file a bail application under Section 167(2) (often called a “default bail” application) immediately on or after the expiry of the remand period. The application should state the remand details and that no charge-sheet has been filed. (Courts have held that this is an indefeasible right, but it must be claimed by application.)
  3. Hearing: The Magistrate will examine the remand orders and the time elapsed. The prosecution rarely opposes, since failure to file a charge-sheet is not the accused’s fault. However, they may file the charge-sheet before or just as the hearing begins to defeat the application (in which case the right expire).
  4. Order: If the court is satisfied that the period has lapsed and no charge-sheet is on record, it must release the accused on bail with appropriate bond and sureties. The accused is then said to be on “statutory bail” (treated as bail under Chapter XXXIII).
• Documents required: Remand orders showing dates of custody, court stamp on remand orders, certificate from police that no charge-sheet was filed (sometimes an affidavit by police officer), bail application, and surety documents.
• Conditions: The statutory mandate is to release on bail (subject only to the accused furnishing bail). Usual bond conditions apply (appearance at trial, no reoffending). Since this bail arises by right, courts generally do not impose extra onerous conditions beyond what’s necessary.
• Key points: The right to statutory bail is time-sensitive. If the accused fails to apply for it before a charge-sheet is filed, he loses the right. For example, if 90 days expire and no charge-sheet is filed, but on the 91st day the police file the charge-sheet, the accused cannot claim default bail afterward. Courts have stressed the accused must promptly move the application on the day remand expires.
• Example: Mr. Z is remanded to judicial custody after arrest for a bailable offence punishable up to 7 years. His first remand (15 days) ends on June 1. On June 2, having received no charge-sheet, Z files an application under Sec 167(2). On June 3 (61 days from first remand), the court finds no charge-sheet filed and grants Z default bail (requiring a personal bond with sureties).
• Relevant case law: Hitendra Vishnu Thakur v. State of Maharashtra (1994) (under TADA) and Ram Govind Upadhyay v. State of M.P. (2003) established that statutory bail vests once the remand period expires without a charge-sheet. In Mohd. Asrafat Bhat v. State of J&K (2007) and others, the Supreme Court reiterated that the right is enforceable only before filing of charge-sheet, and if not claimed in time, it is lost.

5. Comparison of CrPC Bail Sections

• Section 436 (CrPC): Bail in bailable offences. Every person accused of a bailable offence shall be released on bail as a matter of right, on personal bond or sureties, upon arrest. Police or magistrate must grant it.
• Section 437 (CrPC): Bail in non-bailable offences (Magistrate’s power). An accused arrested for a non-bailable offence may be released on bail at the Magistrate’s discretion, unless there is “reason to believe” he committed an offence punishable with death or life imprisonment. Specific statutory restrictions apply (for example, no bail if prior convictions for certain offences, unless conditions of age/health). Bail may be granted with conditions (as above).
• Section 438 (CrPC): Anticipatory bail (High Court/Sessions only). Allows pre-arrest bail upon application by a person who apprehends arrest for a non-bailable offence. The court considers factors like the nature of accusation, antecedents, flight risk, etc., and may grant bail even before arrest. Interim orders are explicitly permitted.
• Section 439 (CrPC): Special powers of Sessions Court/High Court. Empowers these courts to grant or cancel bail in all cases (whether or not cognizable or bailable) to any accused “in custody”. It also allows them to set aside or modify any condition imposed by a lower court. Before granting bail in serious offences (triable exclusively by Sessions or punishable with life imprisonment), the court must give notice to the Public Prosecutor.
• Section 167(2) (CrPC): Statutory bail. Imposes time-limits on investigation (60/90 days). If those lapse without completion, the accused is entitled to be released on bail as a matter of right, provided he applies timely.

Each provision has been interpreted through case law to balance personal liberty and the interests of justice. For example, the Supreme Court has clarified that bail is not an ordinary matter of discretion in cases of lengthy pre-trial detention (Hussainara Khatoon) and that specialized bail (anticipatory/default) is extraordinary relief subject to strict conditions (Sibbia, Asrafat Bhat, etc.).