Criminal bail is the most discussed concept not only within the legal fraternity but also in society at large. it is a myth that, seriousness will be the sole factor of determination of bail or factual matrix will determine the grant of bail from the court

Understanding bail

Bail is the surety by the accused to the court that he will co-operate with the court proceedings and conditions imposed on him to give the benefit of release from the custody.

The code of criminal procedure offences are enlisted based on the gravity of the offence, right to bail is determined.

Bailable offences

The bailable offences are the offences categorised by the legislature, in that enlisted offences the accused shall have the right to bail and the court upon presentation of the bail application, shall release the accused on bail without application of discretion.

Non- bailable offences

The non-bailable offences classified by the legislature differently and provided that the court shall discuss whether the accused may be released from custody under the circumstances.

Definition provided by the code of criminal procedure-

2 (a) ” bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and” non- bailable offence” means any other offence;

Factors affecting the grant of bail

Bail under the non-bailable offences is the matter of court’s discretion which are governed by the guidelines provided by the supreme court and high courts provided to the subordinate courts as precedents. some of the important factors are-

Criminal antecedents

The previous criminal acts of an accused is very much considered by the courts, although it is nowhere written under the code of criminal procedure that accused with criminal antecedents will not get the benefit of liberty by the appropriate court.

The previous serious criminal history will be considered by the court for determining whether the person can misuse the liberty granted by the court.

Facts of the case

facts relating to the commission of the case usually not considered as a ground for the denying bail because the facts and allegations need to be proved by the prosecution in the stage of the trial.

But, if there are pieces of evidence clearly stating the accused had committed the offence and he may again commit similar offences if released by the court.

Seriousness of offence

The seriousness of the offence is not very much important for determining bail, but nowadays courts had started considering the seriousness of allegations against the accused persons.

Ability to escape from Justice

The court also considers the ability of the accused to escape from the court procedure such as financial ability or other resources.

Pending Investigation

The courts usually deny the grant of bail to accused if the police investigation is pending and it needs the custody of the accused from the court. the maximum time of the police custody is already provided under Cr.P.C.

Investigation delays

The code of criminal procedure as an efficacious remedy provided section 167 under which right to compulsive bail accrues for the accused if the investigation is delayed by 60 days and 90 days as the case may be

  1. Procedure when investigation cannot be completed in twenty-four hours.

(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-

(a) 1 the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

  1. subs. by Act 45 of 1978, s, 13, for paragraph (a) (w, e, f, 18- 12- 1978 ).
  2. Ins. by act 10 of 1990, s. 2 (w. e. f 19- 2- 1990 )

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 1

Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;]. 2

Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.]

(2A) 1 Notwithstanding anything contained in sub- section (1) or sub- section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub- section,

Landmark Judgment of Arnesh Kumar vs State of Bihar (2014) 8 SCC 273


The Supreme court of India had given a landmark Judgment,  where it ordered that persons should not be arrested automatically if the allegation of committed offence is attracting punishment of 7 years imprisonment.

We are of the opinion that if the provisions of Section 41Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate does not authorise detention casually and mechanically. To ensure what we have observed above, we give the following direction:

All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41Cr.PC;

All police officers are provided with a check-list containing specified sub-clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest while forwarding/producing the accused before the Magistrate for further detention;

The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.


The grant of bail is purely the discretion of the court which is governed by the above factors and the principles and guidelines laid down by the supreme court and high courts.

Bare sections provided by – Indiankanoon


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