Bail

Bail is a temporary release of the accused from the legal custody while awaiting their trial. It is derived from the old French verb “baillier” meaning to ‘give or deliver’. According to Black’s Law Dictionary, what is contemplated by bail is to procure the release of a person from legal custody, by promising that he will appear at the time and place designated and face the judge. According to Halsbury’s Laws of England, A bail is not granted to free the person, but to release them from the legal custody and they are entrusted to the custodies of their sureties who are bound to produce the accused before the court at the specified place and time.

Official Definition of Bail

Bail as defined in Legislations

1. Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

Bail has been defined in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in Section 2(1)(b) as the release of a person accused of or suspected of commission of an offence from the custody of law subject to conditions set by an officer or a court on execution of a bond or a bail bond by such person.

• Provision': S. 2(1)(b) defines bail, S.2(1)(e) defines bond as a personal bond or an undertaking for release without surety’ and S.2(1)(d) defines Bail Bond as ‘an undertaking for release with surety'.
• Status: In force. It repealed the Cr.P.C. 1973.
• Binding?: Statutory and binding. It is an Act of Parliament, and its definitions apply unless the context says otherwise.

2. Code of Criminal Procedure (Cr.P.C.), 1973 [Repealed]

Bail is not specifically defined in the Cr.P.C. However, the conditions for availing the bail, including other provisions, are available in the Code. The Code of Criminal Procedure uses the term bail to include release either with or without surety. The Cr.P.C. classifies offences as bailable and non-bailable. For bailable offences, bail is a matter of right granted as soon as the accused is willing to furnish bail under S. 436 of Cr.P.C. and the offences herein are less serious. For non-bailable offences are more serious in nature and the bail is discretionary in nature.

• Provision: S. 2(a) defines bailable and non-bailable offences, S. 436 deals with bailable offences whereas S. 437 and 439 deals with non-bailable offences.
• Status: Repealed and replaced by the BNSS from 1 July 2024
• Binding?: Statutory, but it no longer applies to new proceedings except for those saved by the BNSS.

Legal Provisions relating to Bail

Types of Bail

There is no statutory classification of bail. However, bail may be categorized into five types based on the conditions of the grant of bail. It includes regular bail (conditioned on the basis of bailable and non-bailable offences), anticipatory bail, default bail, interim bail and bail after conviction.

Regular Bail

Section 478(1) of BNSS (436 of Cr.P.C.): If the offence alleged is bailable, then the accused is entitled to Bail as a matter of right, either before police station itself or, if forwarded to Magistrate's Court, before the Magistrate's court. The law imposes a statutory duty on the police officer to grant bail upon request. In bailable offences bail is a right and not a favor. In such offences there is no question of any discretion in granting bail.

Section 480 of BNSS (437 of Cr.P.C): It empower two authorities to consider the question of bail, namely (1) a court and (2) an officer-in-charge of the police station who has arrested or detained without warrant, a person accused or suspected of the commission of a non-bailable offence. Although this section deals with the power or discretion of a court as well as a police officer in charge of police station to grant bail in non- bailable offences, it has also laid down certain restrictions on the power of a police officer to grant bail and certain rights of an accused person to obtain bail when he is being tried by a Magistrate.

Section 437, Cr.P.C.: Formerly dealt with the powers of the trial court and the Magistrate (to whom the offender is produced by the police or the accused surrenders or appears) to grant or refuse bail to a person accused of, or suspected of the commission of any non-bailable offence. In such a case, the grant of bail is discretionary and is subject to the restrictions laid down in the section. Bail is not granted if there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or life imprisonment, or if the offence is cognizable and the accused has a previous conviction for an offence punishable with death, life imprisonment or imprisonment of seven years or more, or two or more convictions for cognizable offences punishable with 3 to 7 years. However, the court may direct release on specific grounds where:

• The accused is below 16 years of age.
• The accused is a woman.
• The accused is ill or infirm. For habitual offenders, bail is granted only under special circumstances.

Under the corresponding Section 480 of BNSS, the age is increased from sixteen to eighteen. This amendment makes the provision consistent with the Juvenile Justice (Care and Protection of Children) Act, 2015.

Section 479(1), BNSS: Stipulates the maximum period of detention for an undertrial prisoner is defined, stating that if the accused has been detained for a duration equivalent to 50% of the maximum imprisonment term for the offence during the investigation, they shall be released by the court upon executing a bond, with or without sureties. A first-time offender shall be released after one-third of the maximum imprisonment term.

Anticipatory Bail

Section 482 of BNSS (438 of Cr.P.C.): If a person is anticipating arrest for a non-bailable offence (where bail cannot be sought as a matter of right) they may apply to the High Court or Sessions Court for a grant of bail against such arrest. It has excluded certain aspects that were specified in Section 438 of Cr.P.C, including the four factors the Court was to take into consideration while granting bail. The current law rests discretion upon judges such that they may release the accused on bail as they deem fit. The exclusion also spanned the following-

• Giving the Public Prosecutor a reasonable opportunity to be heard" during the application hearing [S. 438(1-A), Cr.P.C.]
• Ensuring the presence of the applicant seeking anticipatory bail at the time of final hearing [S. 438(1-B), Cr.P.C.]

The BNSS does not provide any express criteria for determining the grounds for granting anticipatory bail, which results in giving the court greater discretion without any specified guidelines to be followed.

Know more: Anticipatory Bail

Default Bail

Section 187 of BNSS: The magistrate may stipulate a maximum period for the detention of the accused in cases where it appears that the investigation cannot be completed within 24 hours. The accused is entitled to default bail on the completion of the maximum period, i.e., 90 days for offences punishable with death, imprisonment for life or for 10 years or more, and 60 days for all other offences, if the investigation is not completed and the charge sheet is not filed within that period, provided the accused is prepared to furnish the bail. Further, it grants police the authority to request custody either in a single stretch or in parts throughout the initial 40 or 60 days of the total detention period of 60 or 90 days respectively, as may be applicable.

Section 167 of Cr.P.C.: Did not provide for the option to request custody in parts, Section 187 of the BNSS has added that the maximum duration for seeking police custody is 15 days, and can be undertaken in whole or in parts.

Section 480 of the BNSS: provides that the mere fact that an accused person may be required to be identified by witnesses during the investigation, or for police custody beyond the first fifteen days, shall not be sufficient ground for refusing to grant bail if they are otherwise entitled to be released on bail.

Interim Bail

Interim bail is granted temporarily for a short term during the pendency of regular or anticipatory bail. There is no express legal provision for ad-interim or interim bail but the court has the discretion to grant it. Section 483 of BNSS (Section 439, Cr.P.C.) is on the High Court’s & Session Court’s special power to release the accused in custody on bail.

Previously, Section 438, Cr.P.C. expressly provided for interim bail pending disposal of the plea for anticipatory bail, as against its current modification under Section 482 of BNSS, which does not. This was seen as an effective check against unscrupulous exercise of the arrest power by the police, and was consistent with fundamental right to life and liberty under Article 21 of the Constitution of India.

Bail after conviction

Section 430 of BNSS (Section 389 of Cr.P.C.): deals with a situation where convicted person can get a bail from appellate court after filing the criminal appeal. The appellate court may, pending appeal before it, for reasons recorded in writing, suspend the sentence and release the convicted person on bail or on their own bond. Section 430 (3) deals with a situation where the trial court itself shall grant bail to a convicted accused enabling them to prefer an appeal, unless there are special reasons for refusing.

Grant of Bail: Factors to be taken into Consideration

In the case of the State of Maharashtra v. Sitaram Popat Vetal, the court gave factors to be taken into consideration to decide on the grant of bail. They include:

1. The nature of the accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.

In Satender Kumar Antil v. CBI & Anr., the Supreme Court categorized the offences into four categories and gave specific guidelines for each along with general conditions to co-exist for the applicability of said guidelines.

Summary of Guidelines

Category and Nature of Offence	Conditions	Course to be adopted by courts
A: Offences punishable with imprisonment of 7 years or less, not falling in category B and D	1) Accused not arrested during investigation. 2) Cooperated throughout the investigation, including appearance before the Investigating Officer whenever called.	1) Ordinary summons (Appearance through a lawyer permissible) 2) Bailable warrant for physical appearance may be issued if the accused does not appear despite the service of summons. 3) Non-bailable warrant on failure to appear despite the service of bailable warrant. 4) Non-bailable warrant can be cancelled or changed to a bailable warrant or summons by the court without making the accused appear in person. It applies when the accused applied before the warrant is executed and promises to appear in person on the next hearing dates.
B: Offences punishable with death, imprisonment for life, or imprisonment of more than 7 years	None listed	On appearence of accused in court pursuant to process issued; bail application to be decided on merits
C:Special Acts containing stringent provision for bail	None listed	Same course as category B and D is followed, but the accused must also meet the bail rules of that Special Act, such as those present in NDPS Act, PMLA, UAPA , Companies Act and POCSO.
D: Economic offences not covered by Special Acts.	None listed	Same as category B- On appearence of accused in court pursuant to process issued; bail application to be decided on merits

The Supreme Court in In Re Policy Strategy for Grant of Bail gave 7 directions with respect to the execution of bail orders that include relaxations in the condition of producing surety, adequate notice of grant of bail to the prisoner, engagement of District Legal Services Authority in case of non-execution of orders of bail, etc.

Furthermore, the case of Munnesh vs State of Uttar Pradesh, 2025 mandates the disclosure of criminal antecedents in all bail-related Special Leave Petitions. The Supreme Court, hence, directed that each individual approaching the Court with a SLP (Criminal) challenging orders passed by the High courts or Sessions courts declining prayers under Sections 438/439 of the Cr.P.C. or under Sections 482/483, BNSS shall mandatorily disclose in the synopsis his criminal antecedents i.e. that either he is a man of clean antecedents or if he has knowledge of his involvement in any criminal case and if found incorrect subsequently, serves as a ground for dismissal of the petition.

Cancellation of Bail

There is no specific provision laying down the grounds for cancellation of bail, but Section 480(5) of BNSS (437(5) of Cr.P.C.) empowers the court that granted the bail to cancel it and order the arrest of such person for the non-bailable offence. The bail can also be cancelled by the Session Court or the High Court under Section 483(3) of BNSS (439(2) of the Cr.P.C.).

Neither the Cr.P.C. nor the BNSS enumerate the grounds for the cancellation of bail, but various judgements declare them. The Supreme Court, in the case of Dolat Ram v. State of Haryana held that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused the concession of bail. It was observed that very cogent and overwhelming circumstances were necessary for cancelling a bail that has already been granted. The judgement laid down several grounds for such cancellation of bail, also summarized in the case of Deepak Yadav v. State of U.P., are as follows:

(i) interference or attempt to interfere with the due course of administration of justice;

(ii) evasion or attempt to evade the due course of justice;

(iii) abuse of the concession granted to the accused in any manner;

(iv) possibility of the accused absconding;

(v) likelihood of/ actual misuse of the bail; and

(vi) likelihood of the accused tampering with the evidence or threatening witnesses.

The Supreme Court in Deepak Yadav also clarified that cancellation of bail is not limited to the occurrence of supervening circumstances. It can also be cancelled by the court in the absence of such circumstances.

Conditional Bail

Granting bail involves a delicate balance for a court. The accused is presumed innocent until proven guilty; thus, their liberty cannot be indefinitely curtailed. At the same time, the victim awaits justice and is entitled to a thorough investigation and fair trial, which requires the accused's participation. Therefore, courts often supervise bail releases by imposing certain conditions to maintain this balance.

This type of bail is granted contingent on certain conditions listed by the Court. They may include not leaving the particular jurisdiction without permission of the concerned authority, surrender of passport, furnishing of surety, etc. The failure of these conditions may lead to the cancellation of bail. As per Section 480(3) of BNSS (437(3) of Cr.P.C.) and 482(2) of BNSS (438(2)of the Cr.P.C.), the court is given the power to impose such conditions as it may deem necessary in the interest of justice, apart from the conditions to ensure the attendance of the accused when required, to protect witnesses from tampering or intimidation, and to prevent the commission of similar offence.

The Supreme Court has time and again cautioned the lower courts that such conditions cannot be arbitrary.

• The scope of the concept of “interest of justice” in Section 437(3) of the CrPC has been considered by this Court in the case of Kunal Kumar Tiwari v. State of Bihar. It was held that such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision and that "The phrase “interest of justice” as used under the clause (c) of Section 437(3) means “good administration of justice” or “advancing the trial process” and inclusion of broader meaning should be shunned because of purposive interpretation.”
• In the case of Munish Bhasin v. The State, the Supreme Court has held that the court, while granting bail, should give due regard to the facts and circumstances of the case and can impose necessary, just and efficacious conditions.
• Absurd conditions like rakhi tying by the Madhya Pradesh HC were set aside by the SC in Aparna Bhat v. State of M.P. holding that the bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. P.C.
• In State of A.P. v. Challa Ramkrishna Reddy, it was held that the conditions incorporated in the order granting bail must be within the four corners of Section 437(3). The bail conditions must be consistent with the object of imposing conditions. While imposing bail conditions, the Constitutional rights of an accused, who is ordered to be released on bail, can be curtailed only to the minimum extent required. Even an accused convicted by a competent Court and undergoing a sentence in prison is not deprived of all his rights guaranteed by Article 21 of the Constitution.
• In Frank Vitus v. Narcotics Control Bureau & Ors. the Supreme Court struck down the condition requiring the accused to drop a PIN on Google Maps for location tracking. This was deemed an infringement of the right to privacy. The ruling emphasized that bail conditions cannot impose continuous surveillance or result in a virtual custody of the accused.

Bail Bond and Surety Bond

The Cr.P.C. uses the term bail bond multiple times in sections 437A (Bail to require the accused to appear before the next appellate Court) and 446A (Cancellation of Bond and Bail Bond) but it does not define the term. Provisions have been made under Cr.P.C. regarding the form of a bond, amount of bond, conditions and execution of bond, sufficiency of sureties and discharge of sureties, procedures in case of insolvency or death of surety, etc.

Bail Bond is an undertaking as a form of security to ensure the presence of the accused when required by the court. However, if the accused disregards the conditions of bail, the right to refund the bond is forfeited. Section 2(1)(d) of BNSS has defined "bail bond" as an undertaking for release with surety.

Surety Bond: The grant of bail herein involves a relative or a friend of the accused who acts as surety to ensure the presence of the accused when called upon by the court. In case the accused does not fulfil the conditions of bail, the surety is liable to pay instead of the accused. It forms a part of the bail bond, where another person furnishes the bail amount instead of the accused himself.

In In Re Policy Strategy for Grant of Bail SMW (Crl.) No. 4/2021, the Supreme Court noted the issue of non-release of undertrials even after they are granted bail because they are unable to furnish bail bonds. In view of this problem, Court issued various directions. One of the notable directions is that if the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation.

Bail as defined in international instrument(s)

International Covenant on Civil and Political Rights, 1966

• Provision: Article 9(3) says that it must not be a general rule that a person awaiting trial is detained in the custody, rather they should be released subject to guarantee to appear for trial at any stage of judicial proceedings and for execution of judgment. Article 9(4) gives the detained person the right to approach the court and let the court decide the lawfulness of the detention without delay.
• India's status: Acceded in 1979.

Bail as defined in Official Government Reports

268th Law Commission Report

Further, the corrigendum to the 268th Report of Law Commission of India on Amendments to Criminal Procedure Code, 1973 which includes The Code of Criminal Procedure (Amendment) Bill, 2017 recommends a definition for ‘bail’:

“bail” primarily means the judicial interim release of a person suspected of a crime or any person accused of an offence held in custody, upon a guarantee that the suspect or the accused, as the case may be, will appear to answer the charges at some later date; and includes grant of bail to a person suspected of a crime or any accused person by a court/police officer/ officer authorised by law for the time being in force; and the guarantee may include release without any condition, release on condition of furnishing security in the nature of a bond, with or without sureties, or release on condition of furnishing other forms of security, or release based on any other condition, as deemed sufficient by the court/police officer/ officer authorised by law for the time being in force.

Bail as defined in Case Laws

The State vs Captain Jagjit Singh [1961]

The State vs Captain Jagjit Singh [1961]: The Supreme Court opined that whenever an application for Bail is made to a court, the first question it has to decide is whether the offence is bailable or non-bailable. If the offence is bailable, bail will be granted under S.436, Cr.P.C. If the offence is non-bailable, considerations such as the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the state and similar other considerations should be taken into account before granting bail. Status: Followed.

Moti Ram v. State of M.P. [1978]

Moti Ram v. State of M.P.: The Supreme Court expanded on the interpretation of bail and addressed the confusion arising from the Cr.P.C.'s inconsistent usage of the terms "bail" and "bond." It noted that -

While some provisions like the proviso to Section 436, Cr.P.C. imply that bail involves surety and treat personal bond as a fallback for those unable to furnish such sureties, others, like Section 441 Cr.P.C., explicitly distinguish between being “released on bail” and “released on one’s own bond.” Further, S.441(2) and (3) of Cr.P.C use the term bail generically to include release with or without surety.

In resolving this inconsistency, the Court held inter alia that bail ought to include both release with and without surety, and persons who are indigent or unable to pay surety ought to be released on their own recognizance. Status: Followed.

Kamalapati Trivedi v. State of West Bengal [1978]

Kamalapati Trivedi v. State of West Bengal : The Supreme Court held that bail is devised as a device for effecting a synthesis of two basic concepts of human values, namely the right of the accused person to enjoy his personal freedom and the public interest; subject to which, the release is conditioned on the surety to produce the accused person in court to stand the trial. Status: Followed.

Sunil Fulchand Shah v. Union of India [2000]

Sunil Fulchand Shah v. Union of India: The Supreme Court interpreted the term "bail" in its literal sense to mean "surety." The judgment clarified that bail refers to the release from custody, which can be either on personal bond or with sureties. This view underscores that bail is fundamentally premised on a monetary assurance, either through one’s own assurance (also called personal bond / recognizance) or through third party sureties. The Supreme Court has also reiterated this definition in the Moti Ram Case, mentioned below. Although, bail has been understood to include release with or without surety, there is currently some confusion regarding the textual usage of the terms bail and bond because some provisions in Cr.P.C. use the term bail to include both kinds of release, while others make a distinction between release on bail with surety, and on a personal bond without surety. Status: Followed.

Satender Kumar Antil v. Central Bureau Of Investigation [2022]

Satender Kumar Antil v. Central Bureau Of Investigation : The Supreme Court held that "A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency. It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial."

It was also held in this case that "The principle that bail is the rule and jail is the exception has been well recognized through the repetitive pronouncements of the Supreme Court and that it is again on the touchstone of Article 21 of the Constitution of India." The following directions for category A offences were also given for grant of bail: 1) Not arrested during investigation. 2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called. This court's concern is also reflected in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [1994] , which held that that some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. Status: Followed.

Public Prosecutor v. George Williams alias Victor [1951]

Public Prosecutor v. George Williams alias Victor : The Madras High Court while explaining the concept of ‘bail’, observed that bail or mainprize meant, bailment or delivery of the person to their sureties, to be in their custody as opposed to jail. The rationale is that, they being jailors of choice, would have dominion and control over such accused. Hence, sureties are called upon to produce him, as his jailors, in Court, and punished when they fail to do so. If the sureties cannot control the accused person during the period of bail, naturally, the Court would intervene to shift the custody over to the State. Status: Followed.

Variations

Restrictive Bail Provisions in Special Laws

Many special laws in India reverse the burden of proof making bail as an exception instead of the rule. Some of these laws have imposed further twin conditions to grant bail essentially turning the common law principle of “presumption of innocence” upside down.

Section 37 of the NDPS Act holds that a court can grant bail to an accused only if the Public Prosecutor has been given an opportunity to oppose the bail application and the court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and that he is not likely to commit any offence while on bail. These restrictions are applicable to more serious offences under this Act, involving a commercial quantity of a narcotic drug, and not to offences involving small quantities.

However, the Supreme Court, in Mohd Muslim @ Hussain vs State (Nct Of Delhi) has held: “Grant of bail on the ground of undue delay in the trial cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which applies to offences under the NDPS Act too.” Section 436A of the Cr.P.C. (479 of the BNSS) applies to undertrials prisoners except those accused of offences punishable with death or imprisonment for life, and thus operates alongside Section 37 in NDPS cases.

Under Section 45(1) of the PMLA, the twin conditions are that, first, the Public Prosecutor must be given an opportunity to contest the bail application, and second, the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit any offence while on bail.

The twin conditions under PMLA were declared unconstitutional in Nikesh Tarachand Shah v. Union of India. Following the amendment of Section 45, the Supreme Court upheld the twin conditions in Vijay Madanlal Choudhary v Union of India.

Section 212(6) of the Companies Act also imposes twin conditions similar to those under PMLA. Further, in Ashish Mittal Vs Serious Fraud Investigation Office it was held that these twin conditions do not imply that as soon as section 212(6) is triggered, bail must reflexively, immediately or automatically be rejected. It raises the threshold of satisfaction required of the court while considering the grant or denial of bail. At the threshold, therefore, it must be seen whether there are any allegations against the accused under Section 447 of the 2013 Act, since otherwise section 212(6) will not come into play at all.

High Courts

Bail Case Type

Variation	High Court	What the court's listing shows
No separate bail case type	Punjab and Haryana, Madras, Andhra Pradesh, Chhattisgarh, Madhya Pradesh, Karnataka, Patna, Telangana, Gujarat, Himachal Pradesh	Bail matters are not listed as a case type of their own.
One general bail case type	Delhi, Jammu and Kashmir, Kerala, Meghalaya and Sikkim	"Bail application" appears as a case type
Two bail case types	Bombay, Gauhati, Manipur, Orissa, Tripura and Jharkhand	“Bail” and “Anticipatory Bail” are separate case types.
Three bail case types	Allahabad	Anticipatory bail application Section 438 Cr.P.C (482 BNSS) , bail application, and bail cancellation application.
Three bail case types	Rajasthan	Bail cancellation application, Criminal miscellaneous bail application, and Criminal revision bail.
Case types by offence or sentence	Calcutta	Anticipatory Bail Applications under Section 438 Cr.P.C. (482 BNSS), Criminal Miscellaneous Case (Bail Application), Bail applications where sentence may exceed imprisonment for seven years, all bail applications pertaining to FEMA, all bail applications pertaining to FERA, all bail applications pertaining to NDPS Act, all bail applications where sentence does not exceed imprisonment for seven years, and all bail applications pertaining to TADA Act.
Case types by number of bail application	Uttarakhand	Anticipatory bail application, anticipatory bail cancellation, bail cancellation, and first to tenth bail application.

Bail Case Category

Variation	High Court	What the court's listing shows
Bail listed as a case category	Delhi , Jammu and Kashmir , Allahabad	Delhi: criminal revisions, criminal miscellaneous cases and bail applications. J&K: criminal appeal and bail application. Allahabad: “application.”
Detailed bail categories	Bombay	Writ Petition-Fresh Bail Application Pending Investigation of Trial, Writ Petition- Bail, including Anticipatory Bail, Revision-Fresh Bail Application Pending Investigation of Trial,  Revision- Bail, including Anticipatory Bail, Revision- Bail, including Anticipatory Bail, Appeal- By Persons Convicted (Against Conviction) on Bail, Application- Fresh Bail Application Pending Investigation of Trial, Application-Anticipatory Bail, For Bail, For Temporary Bail, Jail Application for Bail, Cancellation of Bail, Appeal- By Persons Convicted (Against Conviction) on Bail (By Appointed Advocate), ABA- Cancellation of Anticipatory Bail.
Bail categories by statutory provision	Madhya Pradesh	Bail applications under Section 438 and Section 439 Cr.P.C., suspension of sentence under Sections 397 and 389, and bail under the Juvenile Justice Act and the SC/ST Act.
Bail under “Criminal Revisions and Other Cases”	Gauhati HC, Manipur HC, Meghalaya HC	Cancellation of bail, bail application under Section 439, and anticipatory bail application under Section 438.

International Experiences

United States of America

Definition: In American law, Bail is the money a defendant pays as a guarantee to be present in court when called upon. A failure to present in court triggers the bond obligation allowing the court to keep the money given as security.

Operation: According to the American Bar Association, the judge or magistrate decides the amount of bail by weighing many factors, including the risk of the defendant fleeing, the type of crime alleged, the "dangerousness" of defendants, and the safety of the community among others.

Different states have different bail practices, but most follow the common method of determining whether to jail the person without the possibility of release until the case is over. A person may be detained pretrial only if there is a high risk that the person will not appear in court or will be a danger to the community. The Eighth Amendment to the U.S. Constitution prohibits “excessive bail,” but it does not require courts to allow bail.

The Federal Pretrial Risk Assessment (PTRA) is a scientifically based instrument created by the Administrative Office of the U.S. Courts (AO) and used by the probation and pretrial services officers to assist in determining a defendant’s risk of failure to appear, new criminal arrests, or technical violations that may lead to revocation while in the pretrial services system.

Pretrial risk assessment tools include characteristics of the defendant, their social environments, or their circumstances. These typically include the defendant's age, substance use, criminal history, pending/current charge(s), employment stability, education, housing/residential stability, family/peer relationships, and community ties.

Risk factors are characteristics that increase the likelihood of failure to appear and/or rearrest, while protective factors are characteristics that decrease the likelihood of failure to appear and/or rearrest. State laws authorize, require, encourage, or regulate court use of pretrial risk assessment tools.

Several states utilize pretrial risk assessment tools in varying ways and with different mandate. For instance, New Jersey has a state-wide pretrial services program that administers pretrial risk assessments and offers recommendations to courts. Utah has no law addressing pretrial risk assessment, but the state courts have implemented a tool in many cases. Colorado requires that courts should consider the results of the tool whenever possible. While Vermont allows judges to request a risk assessment in particular cases, the defendant's participation is voluntary. Idaho and New York do not require or encourage the use of a risk assessment tool but instead offer guidelines and requirements that all jurisdictions must follow if they choose to use one. Nevertheless, judges still have their discretion along with using risk assessment tools, and no state requires courts to adhere to the results.

United Kingdom

Definition: Conditional bail means that restrictions and conditions are imposed on defendants. This may mean the defendant can’t contact a complainant or go to a certain location. While unconditional bail means that there are no restrictions and conditions imposed on defendants. It is usually granted when there is no flight risk and it is unlikely that the defendant will reoffend or interfere with victims and witnesses. In the UK, bail is based on cash deposits and specified restrictions on individual liberty.

Operation: The United Kingdom enacted a special Bail Act in 1976, which follows a “simple procedure” and provides for bail to all those to whom it is applicable, except as provided in Schedule 1 of the Act. Schedule 1 provides for different contingencies and factors, including the nature and continuity of the offence. Bail can be either unconditional or conditional.

The bail can be of three types -

1. Pre-charge bail or police bail - The police can impose this bail when they have arrested and detained a suspect but do not have the evidence to charge them, the suspect must be released. They can be released either on pre-charge bail (also known as police bail), “under investigation” (RUI), or with “no further action”. Pre-charge bail may be imposed by the police for several reasons. This includes instances where there is insufficient evidence to charge the suspect, and they are released pending further investigation. Additionally, pre-charge bail may be imposed when the police believe there is enough evidence to charge, but the matter needs to be referred to the CPS for a charging decision. Finally, pre-charge bail may be imposed when it is no longer necessary to detain the suspect for questioning, but the police are unable to charge the suspect. However, It is for the police to decide whether a suspect is released with or without bail and if released on bail, whether any conditions of bail should be imposed.
2. Post-charge bail - This kind of bail is imposed by the police where there is sufficient evidence against an individual who has been charged. It is at the discretion of the police to keep them in detention or release them on bail to appear at court on a future date and may also impose conditions on that bail.
3. Court bail - This kind of bail is imposed by the courts when an individual has been charged.

Australia

Definition: The new legislation introduced the concept of “unacceptable risk” in bail, which considers whether the accused would pose a threat by failing to show up in court, committing a serious crime, or endangering the victim, society, or evidence while granting bail.

Operation: The Australian state of New South Wales in 2013 enacted a comprehensive Bail Act to replace a 1978 law. On the federal level, Australia has similar specific legislation, which allows for the grant of bail except in certain cases, such as specific offences or while serving a jail sentence. The law also outlines conditions and undertakings for the one who is given bail.

Technological initiatives

FASTER (Fast and Secured Transmission of Electronic Records)

The Supreme Court runs it and it is used for sending order electronically. It sends authenticated copies of bail to officials who are required to act on it. It was launched because people were staying in the jail even after being granted bail just because the bail order had not reach to the prisons.

e-Prisons (Ministry of Home Affairs)

A prison management application used by State prison departments. It records each prisoner's details to generate alert for bail eligibility to prevent detention beyond prescribed period. The feature of Bail order management system is utilized by the court to reflect bail status and speed up the verification process.

Appearance in the Official Databases

Law Commission Reports

The 78th Report of the Law Commission of India on Congestion of Under-trial Prisoners in Jails suggests enlarging the list of bailable offences, and conditions for release on bond without sureties while discussing the law of bail with a focus on undertrials.

The 268th Report of the Law Commission of India on Amendments to Criminal Procedure Code, 1973 extensively discusses the concept of bail and suggests recommendations to that effect.

The Law Commission of India’s 203rd Report on Section 438 of the Code of Criminal Procedure Code, 1973, gives the Law Commission’s opinion, at the request of the Government, on the amended version of Section 438 of CrPC dealing with anticipatory bail.

Prison Statistics India

The National Crime Records Bureau’s Prison Statistics India 2021, present data on prison inmates in India and also provides data on number of inmates released on Bail.

• Data creator: NCRB, Ministry of Home Affairs, using returns from State and UT prison departments.
• Unit and reference date: numbers of persons, and shares are percentages of total releases. Published annually.
• Variables for inmates released on bail: Category of inmates (undertrials or convicts) who are released on appeal, acquitted, transferred to other states, released on bail.
• Abbreviations: Asterisk (*) marks the others categories.

National Judicial Data Grid (NJDG)

• Data creator: Run by the e-Committee of the Supreme Court of India with the Department of Justice and the National Informatics Centre

• Unit and reference date: numbers of cases, and age of pendency is in years. The data is updates daily.
• Variables for undertrial prisoners: data for pending bail applications: High Court wise, bench wise and year wise classified into matter-type, age-wise and institution v. disposal, pending bail applications of district courts are categorised as matter-type, age-wise, stage-wise and Institution v. Disposal.
• Abbreviations: National Judicial Data Grid (NJDG), High Court (HC), District Court (DC).

Age Wise Pendency of Bail Petitions

Stages of Pendency of Bail Petitions

Institution vs Disposal of Cases

Similarly, the data is available in the Disposed Dashboard of NJDG (High Courts) for the bail applications classified as Matter type, age-wise, nature-wise and time to disposition.

Age Wise Disposal of Cases

Nature of Disposal of Cases

Time to Disposition

The National Judicial Data Grid (District and Taluka Courts of India) showcase the data for pending and disposed off bail applications district-wise and year-wise under different categories. The information on pending bail applications are categorised as matter-type, age-wise, stage-wise and Institution v. Disposal.

The data is also available for disposed off bail applications district wise and year wise classified as matter type disposal, age-wise disposal, nature-wise disposal and time to disposition.

E-Courts Website

Bail as a case type also features in E-Courts-District Court website as a search filter as ‘Bail Matters-Bail Case Type.

• Data creator: Run by the e-Committee of the Supreme Court of India with the Department of Justice and the National Informatics Centre

At the District Court level, there is a practice of uploading final order sheets without reflecting the outcome against it. However, some courts like Lucknow District Court upload final order sheets reflecting their outcomes.

DAKSH Database

• The High Court Bail Dashboard by DAKSH analyses data from bail cases in high courts sheds light on the vexing issue of undertrial detention and its burden on the criminal justice system. It analyses the data from bail cases in High Courts and provides insights on types of bail cases, subject matter of bail cases, duration of bail cases, and outcomes of bail cases.
  • Data creator : DAKSH, a civil society organisation and a research institution.
  • Variables: year of institution, the High Court, bail case type, case status, disposal time and subject matter.

    

    

    The image is retrieved from https://database.dakshindia.org/bail-dashboard/?utm_source=substack&utm_medium=email

Research that engages with Bail

Peer-reviewed work

Confused Purposes and Inconsistent Adjudication: An Assessment of Bail Decisions in Delhi's Courts (2024), Cambridge University Press

This book by Anup Surendranath and Galen Andrew explores the inconsistencies in bail decisions in Delhi Courts.

• It highlights how varying interpretations of legal principles and the subjective nature of judicial discretion lead to unpredictable outcomes.
• The paper argues that these inconsistencies undermine the rule of law and the right to liberty, calling for clearer guidelines and reforms to ensure more uniform and just bail adjudication.

Inconsistent and Unclear: The Supreme Court of India on Bail (2013), NUJS Law Review

This paper by Vrinda Bhandari analyzes the legal framework surrounding bail and pre-trial detention in India, focusing on how judicial decisions align with the principle of the presumption of innocence.

• It contrasts two Supreme Court rulings - Pappu Yadav v. CBI and Sanjay Chandra v. CBI, the analysis being limited to bail provisions under the Criminal Procedure Code, excluding any special laws.

Reports and other work

Re-imagining Bail Decision Making (2015), Centre for Law and Policy Research

The collaboration of the Azim Premji Philanthropic Initiative and the Centre for Law and Policy Research in their report “Re-imagining Bail Decision Making” analyses bail practice in Karnataka and makes recommendations for reform.

• The report shows that a staggering 2/3rd proportion of the prison population are undertrial prisoners and points towards better Bail Decision Making process to curb this issue.
• The study also covers effects of monetary bail system on detainees from marginalized socio-economic backgrounds.
• It is a comprehensive report on the staggering number of undertrial prisoners, policy reforms and suggestions.

A Study on Bail and Extent of its Abuse Including Recidivism (2017), Tata Institute of Social Sciences

This empirical study by Tata Institute of Social Sciences has been carried out to explore the use and potential abuse of bail in the criminal justice system and its impact on recidivism.

• It also discusses the interface between recidivism and the bail system is stressing the importance of bail in the restorative justice process.
• A comparative study of recidivism in different countries is also included which provides framework to understand the criminal justice system and the law and order in India.
• It analyses sociological and legal aspects of the bail system as it operates on the ground level and also breaks some popular assumptions.

Bail Reforms in the Context of Undertrial Women Prisoners: An Action-Oriented Research with Special Reference to Sabarmati Central Jail in the State of Gujarat (2021), Gujarat National Law University

This study by Dr. Jagadeesh Chandra and Dr. Saurabh Anand covers the situation faced by women undertrial prisoners in India and the various policy reforms which can bring a change.

• It points out that overcrowding in prisons has reached a chronic stage and as the prison system is collapsing, the greatest hardship is being faced by women.
• Due to their gender women often face discrimination due to lack of prison infrastructure or discrimination due to resultant social stigma caused by imprisonment, and they also find it difficult to secure bail or even get a surety when bail is granted to them.
• As a result, their right of getting a fair trial is hindered and they often suffer imprisonment without following the due process of law.

How the Supreme Court speaks in contradictory voices on bail [Vineet Bhalla, 2024]

The article by Vineet Bhalla discusses the Supreme Court of India's inconsistent approach to granting bail, highlighting contradictory rulings and the resulting unpredictability in bail decisions.

• It points out that different benches of the court have issued conflicting orders regarding similar bail conditions, leading to a "judicial lottery" where outcomes heavily depend on the individual judges' discretion.
• The inconsistency extends to cases under the Unlawful Activities (Prevention) Act and notable examples of selective liberty, affecting both political figures and activists.
• The article calls for standardized guidelines to ensure fair and uniform bail decisions.

Handbook on Principles of Bail Conditions [Law and Equity Foundation, Jharkhand, 2024]

This Handbook released by Law and Equity Foundation is comprehensive reference guide for lawyers practicing at the criminal trial and appellate levels, equipping them with an overview of the evolving jurisprudence surrounding bail conditions.

• The Handbook is currently organized in seven broad categories of case law i.e. general principles of bail conditions, extremely onerous bail bonds, onerous conditions on type and number of sureties, restrictions on travel/movement (including location sharing), payment of compensation, and restrictions on speech and behaviour of accused.

State of the Indian Judiciary [Daksh, 2016]

The Report by Daksh involves an Access to Justice Survey (Access to Justice Survey : Introduction, Methodology, and Findings [pg. 138]), the first systematic study in India to explore the needs and expectations of the users of the judicial system—the litigants.

• The survey assesses how justice is being delivered in courts across the country.
• It maps litigants’ perceptions on several issues relevant to their experiences in the judicial system, such as the factors that influence the ease with which they can access the system, their ability to use the court system to resolve disputes effectively, the quality of judicial services, and the socio-economic fallout of judicial delay.
• The survey also gathers essential information about the background of litigants, nature of cases they are involved in, relationship between opposing litigants, and previous litigation experience.

Following data reflects upon the aforementioned:

Provider of Surety for Bail

Reason for Not Availing Bail Where Due

Time Spent in Jail by Those Who Were

Related Terms

• Anticipatory Bail
• Regular Bail
• Default Bail
• Interim Bail
• Bailable Offence
• Non-Bailable Offence
• Personal Bond
• Bail Bond
• Surety Bond
• Undertrial Prisoner