How to get bail for your client ?



This article is written by Abhinav Agrawal, pursuing B.A.,L.L.B. (H) from Amity Law School, Amity University Madhya Pradesh

What is Bail

In general terms, bail is the written permission for the temporary release of the suspect from the prison who is awaiting court trial. It is given as a security that the accused will attend the court proceedings against the accusations made on him. Bail becomes effective after the moment of arrest. The exact meaning of the word “bail” is not defined in the Criminal Procedure Code, 1973, However, the terms “bailable” and “non-bailable” offense is described in Section 2(a) of Cr.P.C.  The two authorities that can grant bail are police and courts. And the sections from 436 to section 439 of the Code of Criminal Procedure deal with the provisions of bail.

Bailable and Non Bailable Offence

There are some offenses that are not very severe in nature, In those cases, the accused person has the right to take bail after fulfilling the Bail Bond with the police. For executing the bail Bond, the accused person has to comply with certain terms and conditions like his involvement in the tempering of evidence, the danger of accused of absconding, the gravity of the offense, the previous conduct of the accused person, etc.  The accused person is required to give his presence before the police officer every time whenever he is called upon and if such person is unable to accomplish these terms and condition the court to have the right to refuse his bail.

On the other hand, in case of non-bailable offense a person cannot demand his right to release through bail. In non-bailable offense, the bail is granted only through the permission of Court. Generally, the court refused them bail if the accused is charged with Murder, Rape, Dowry Death, or the accused has attempted to abscond, etc. however, it is mostly the offenses which are punishable with imprisonment for not less than three years that are classified as non-bailable.

Types of Bail

There are three types of bail

  1. Regular bail
  2. Interim bail
  3.  Anticipatory bail

Regular bail 

Under Section 437 and Section 439 of the Cr.P.C. person can be released on the regular bail. 

Section 437

It says that if any person accused or suspected of the commission of any non-bailable offense, and arrested without a warrant by a police officer, he may be released on bail if there is not any reasonable ground to believe that such person has committed any non-bailable offense. This section is followed if the suspected is brought before a court other than the High Court or Court of Session.

If such person, has been alleged to commit any offense which is punishable with death, imprisonment of life, or imprisonment of seven years or more, or he has been previously convicted for the same offense. He is not entitled to released through bail by the court. 

Section 439

It talks about the power given to the High court and the Session Courts regarding the bail. It is the discretion of the High Court to release the person of bail for the offense specified in Section 437 (3) of Cr.P.C. and may impose terms and conditions which it may consider necessary.

It is also mentioned that the court may set aside the conditions imposed by the Magistrate.

Interim Bail

Before giving regular or anticipatory bail an interim bail is given to the accused person. It is given in the cases where the disposition of the bail application (regular or anticipatory) takes time when documents are sent from the lower court to High court. In such cases, an interim bail is given for a temporary period. It is also given with the purpose to safeguard the reputation of the accused person. Once the period of interim bail is expired the accused person is again put in jail.

Anticipatory Bail

Section 438 of Cr.P.C. deals with anticipatory bail where there is an apprehension to arrest. It states that if any person has an apprehension that he may be arrested on the accusation of committing a non-bailable offense, he may apply for the anticipatory bail to the High Court or the Sessions Court under this section. 

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High Court or session court before granting anticipatory bail to the person kept certain conditions in mind as the possibility of threatening of witnesses, the possibility of evidence being tampered, fleeing away of the accused, etc. 

If the person is arrested without a warrant by the police officer he shall be released on bail. This provision is enacted if prima facie it appeared that such a person is falsely entangled in the matter.

Circumstances under which bail is given by the police

When an arrest is made without a warrant

Section 43 of Cr.P.C. says that, when the accused person is convicted by the private person who commits a non-bailable or cognizable offense, such person shall without unnecessary delay hand over the accused to the police officer. Such an officer after conducting the sufficient inquiry is of the opinion that the convicted person should be released, release him.

Section 56 of Cr.P.C. says that, when the arrest is made without a warrant, then the officer without the unnecessary delay, take the convicted person before the magistrate or the officer in charge of the police station and grant him bail as per the provision of this section.

Section 169 of Cr.P.C. says that before the investigation is made bail cannot be granted  The power to release on bail a person in custody vests in officer in charge of the police station or the police officer making the investigation.

Section 170 of Cr.P.C. says the officer in charge can grant bail to the accused person once it is declared that offense is found to be bailable.

When the arrest is made with the issuance of a warrant

Section 73 of the  Cr.P.C. says that if the court is issuing a warrant under which it is specified that such person executes a bond with sufficient sureties for his attendance before the court than the officer to whom the warrant is directed shall release such person from the custody.

Section 80 & 81 of Cr.P.C. says that when the warrant of arrest is made outside a district, then the person can be released on bail by the police officer who is not a District Superintendent of Police or the Commissioner of Police. But when the arrest is made within the local limits of District Superintendent of Police, the Commissioner of Police in a presidency town than he shall release such person on bail, if the offense is bailable.

A police officer cannot release a person on bail simply because the arrested person is accused of a bailable offense. He has to comply strictly with the contents of the endorsement if any.

In which cases bail is granted 

Section 436 of Cr.P.C. says that any person who is detained by the police officer without a warrant or appeared before the court or at any stage of the proceeding before such court to give bail shall be liable to release on bail.

If the person is failed to comply with the conditions of bail bonds than the court may deny to release him on bail on a subsequent occasion in the same case. He can also be asked to pay penalty for not appearing before the court in the proceedings against him.


Article 21 of the Indian constitution grants a fundamental right to every citizen. It talks about the right to personal liberty. Granting or refusal of bail directly affects the personal liberty of an accused person by releasing or sending him to jail. The court discretion in the question of “bail or jail” has not concerned with the sole individual but to the society at large. If the innocent person is sent to jail, it hampers the principle of natural justice. On the other hand, if the notorious criminal is released he can do more harm to society by committing more offenses. The importance of this judicial discretion cannot, therefore, be understated.




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