The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried prisoners form disease ridden jails while they were waiting for the delayed trials conducted by traveling justices, prisoners were bailed, or delivered, to reputable third parties of their own choosing who accepted responsibility for assuring their appearance at trial.

If the accused did not appear, his' bailor would stand trial in his place. It became the practice for property owners, who accepted responsibility for assuring persons to forfeit money when their charges failed to appear for trial. In the event of non-appearance the bond is for feited. 'Bail' in English common law is the freeing or setting at liberty of one arrested or imprisoned or imprisoned upon any action, either civil or Criminal, on surety taken for his appearance on certain day and a place named.

Under the Indian law the word 'bail ' has not been defined in the code Criminal procedure 1973 have defined the expression 'bailable offence' and non- bailable offence respectively in section 4( 1) (b) and sec; 2 (a). The word 'bail' means the security for a prisoner's appearance for trial. The effect of granting bail is accordingly not to set the prisoner free from jailor custody, but to release him form the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. Under the provisions of Cr P.C., bails may be studied under three heads:

(1) Bails in bailable offences.

(2) Bails in non-offences.

(3) Anticipatory Bail.


1.    Bails in Bailable offences

where an arrested person is accused of a bailable offence he shall be released on bail at any time while n custody, if he is prepared to give bail. But the officer in charge of a police station detaining the accused without a warrant may, instead of taking bail form such person, discharge him on executing a bond without sureties for his appearance. In every bailable offence bail is granted as a matter of favour. No discretion has been granted to courts in such cases.

The granting of bail is imperative under sec. 436 of code of Criminal Procedure. Where a person fails to comply with the conditions of the bail bond regarding time and place of attendance, the court may refuse to release him on bail, when on a subsequent accession in the same the appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bond by such bond to pay the penalty there of under sec. 446 in which the procedure when bond his been for feinted is given.


2. Bails in Non-Bailable Offences :

All offences which do not fall under the category of bailable offences are non-bailable offences. A person accused of a non-bailable offence maybe released on bail, subject to certain restrictions. Sec. 437, Cr P.C., lays down that a person arrested for a non-bailable offence shall not be so relapsed if there appears reasonable grandees for believing that he has been guilty of an offence punishable with death or imprisonment for life. But there is also an exemption in the section, in the case of a person under the age. Of sixteen years or any woman or any sick or infirm person identification by witnesses is no ground for refusing bail.



3. Anticipatory Bails:

Sec. 438 Cr. P.C. 1973 says the issuance of a direction that in the event of arrest of the application he shall be released on bail. Sec. 438 confers power on the High Court as also the Court of Session to grant bail to any person apprehending arrest on an accusation of having committed a non-billable offence in anticipation of his arrest, which is called anticipatory bail.

The object of this section is that if a person has already obtained an order from the session judge or the High Court, he would be released immediately without having to undergo the rigours of jail even for a few days which would necessarily be taken up if he has to apply for bail after arrest.


Application for Anticipatory bail and its Contents

It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not the requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge the reasonableness of his belief.

Apart from the fact that the very language of the statute compels this contraction there is an important principle involved in the insistence that facts on the basic of which a direction under sec. 438 (1) is sought must be clear and specific, not vague and general it is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to on investigate into crimes reported to them can be avoided.

Rule of prudence requires that the notice should be given to the other side before passing a final order for 75 anticipatory bail so that wrong order of anticipatory bail so that wrong order of anticipatory bail is not obtained by a party placing incorrect or misleading facts or suppressing material facts.


Authorities Competent to grant bail Police officers, Magistrates, courts and Government are empowered to grant bail under the various provisions of the code of Criminal Procedure code.

(a)  Police Officers:

Police officer are empowered to grant bail to persons arrested without a warrant under sec. 41 (when police may arrest without warrant) or sec. 42 (Arrest on refusal to give name and residence) or Sec. 43 (Arrest by private person and procedure on such arrest) or Sec. 151 Cr. P.C. (Arrest to prevent the Commission of cognizable offences) or to a person arrested under a available warrant issued by a court, or to accused person to appear before the court when required.

(b)  Magistrates and Courts:

The Magistrates and Court are empowered to grant bail to any accused person. The provisions elating to bail are laid down in various sections of the Cr. P.C. like 436 to 439 in chapter XXIII of the Cr. P.C. the question of granting bail for apprehending arrest has been provided in sec. 438 of Cr.P.C.

(c)  Government:

Under sec.339 Cr. P.C. the Government may, upon and application who is lunatic and on such relations or friends giving security to the satisfaction of the state Government concerned, Order relatively or friend. Under sec. 432 Cr.P.C. The Government is empowered to suspend or remit sentence.

The usual practice is that a person desiring bail should first approach the lower court, but this practice is not inflexible because under sec 439 Cr P.C. special power have been conferred on the High Court or the court of session regarding bail. Further when a person has reason to believe that he may/be arrested on an accusation of having committed a non-bailable offence he may under sec, 438 Cr P.C. apply to the High Court or the court of session for a direction under the said section and that the Court may if it thinks fit direct in the event such arrest that he shall be released on bail. In order to enable the judge to decide whether bail should be granted or not and what exactly are the terms on which he should be granted bail. It would be advantageous of notice is given to the public prosecutor.

Though there is no provision which compels the court to give notices to the public prosecutor before granting bail the court has such power to direct notice in appropriate cases. Since bail in bailable cases is a matter of right for the accused to be enlarged on bail, there is no scope for giving notice to the Public prosecutor.


The circumstances which should be weighted on behalf of the prosecution and against the accused are:

1) That there is every liklyhood that the accused will be absconding on his release.

2) That there is a reasonable apprehension that the accused might tamper with the evidence of the prosecution witnesses by his influence where by the prosecution would be hindered and would not get a fair opportunity of adducing incriminating evidence against the accused.

3) That there is danger of such offence being repeated and continued etc.