Reaffirming- ‘Bail is the Rule and Jail is the exception’

By Megha Chaturvedi, Associate H.K. Law Offices


It is a known fact that no statute including The Code of Criminal Procedure has defined the term Bail yet is has much elaboratively precise meaning. 

According to Halsbury’s Laws of England – “the effect of granting bail is not to set the defendant (accused) free, but to release him from 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. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law and he will then be imprisoned.”

We can also understand its meaning by reproducing the concise yet meaningful definition given to it by Hon’ble Supreme Court of India in case of Moti Ram v State of Madhya Pradesh[1], where it was held that “the definition of the term bail includes both release on personal bond as well as with sureties.” 

Sticking to this definition, ‘bail’ refers only to release on the basis of monetary assurance—either one’s own assurance or sureties by the third parties. It is pertinent to note here that such bail is granted in the event of arrest and Anticipatory Bail u/s 438 Cr.P.C. is an exception which shall be dealt later in detail. 

But the Hon’ble Apex Court of India in case of Kamlapati Trivedi v the State of West Bengal[2] has given much wider definition and understanding to this concept where, the Hon’ble Supreme Court of India observed that bail is devised as a technique 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 trial.


1.Bailable Offences are defined u/s 2(a) CrPC as the offence that has been shown in the First Schedule as bailable or which is made bailable by any other law for the time being in force.  As per Section 2(a) of CrPC, non-bailable offence includes all those offences which are not included in bailable offence in the First Schedule.
2.Bail is a matter of right.Bail is a matter of judicial discretion. 


Section 436 (In what cases bail to be taken) – Section 436 deals with the law relating to bail in bailable offences by Magistrate/Police.

Under section 436, an accused is released on Bail as a matter of right and the concerned Magistrate is bound to release the accused if the accused is concerned with a bailable offence.

No condition can be imposed on accused when the bail is granted under section 436.


Though grant of bail is the rule and landing in prison before actual conviction shall be the exception, it is the discretion of the court to grant or not grant bail in non-bailable offences. However, it is expected that discretion shall be exercised in judicious manner. 

As regards to Judicial discretion, Benjamin N. Cardozo in “The Nature of The Judicial Process”[3] has beautifully observed and commented as:

“The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight- errant roaming at Will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity or order in all the social life. Wide enough in all conscience in the field of discretion that remains.”

Section 437 (When Bail may be taken in case of non-bailable offences) – Section 437 deals with law relating to bail by the Court in non-bailable offences. 

The Judicial Magistrate is empowered to release an accuse on Bail if he is concerned with non-bailable offence except in case of offence punishable with death or imprisonment for life (read with clause 437(1) where Court of Session and High Court are empowered to grant such bail).

The Court shall impose certain conditions while granting bail under section 437 read with clause (3), but an officer or a Court realising any person on bail must record its reasons in writing. 

In case of Lambert Kroger v. State[4], the Hon’ble Delhi High Court held that-

“In all non-bailable cases except cases relating to offences punishable with death or imprisonment for life, judicial discretion would always be exercised by Court in favor of granting bail unless exceptional circumstance were brought to the notice of Court which might defeat proper investigation and fair trial.”


The Courts should not get swayed by perception of morality but should confine its decision to the requirement of law. In case of offences not punishable with death or imprisonment for life, grant of bail is rule and jail is an exception.[5] Bail is not just granted as a matter of right in case of Bailable offences but also in some other cases to the protect the interest of an accused.

Compulsive Bail u/s 167 (2) of Cr.P.C– The Magistrate shall authorise the detention of the accused person, otherwise than in the custody of the police, beyond the prescribed period of fifteen days, only if he is satisfied that adequate grounds exist for doing so, to a total period of not exceeding more that 60/90 days (read with section 167(2) Cr.P.C). And if such period is exceeded, Bail shall be granted as a matter of right to the accused. 

The Hon’ble Supreme Court of India in case of Aslam Babalal Desai v. State of Maharashtra[6], has held that once an accused is released on bail u/s 167(2) of Cr.P.C., he cannot be taken back in custody merely on filing of a charge-sheet but there must exist special reasons for doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime.

The Apex Court has cleared the position and accused’s right of bail in case of Uday Mohanlal Acharya v. State of Maharashtra[7] has held that-

“Subsequent filing of charge-sheet would not frustrate the indefeasible right of accused to be released on bail.”

Recently, the Full Bench of Hon’ble Supreme Court of India in case of Kamlesh Chaudhary v. State of Rajasthan[8] has set aside the judgement of Hon’ble High Court partly where it granted Bail to accused u/s 167 (2) as the complete charge-sheet was not filed within prescribed time and while granting bail the High Court held that the appellant can be re-arrested after the charge-sheet is filed. The Apex Court relied on its judgement in case of Bashir v. State of Haryana[9] where the Hon’ble Supreme Court held that it is open to the prosecution to file an application for cancellation of bail on the grounds known to law and the receipt of the charge-sheet in Court can by itself be no ground for cancellation of Bail and reiterated that filing of charge-sheet by itself cannot be a ground for cancellation of Bail.

Also, in a case where the trial of a person accused of any non- bailable offence is not concluded within a period of 60 days from first recording of evidence and if he is in custody during the whole of the said period, such person shall be released on bail on the satisfaction of the Magistrate and reasons to be recorded for the contrary. (Read with Section 437 (6)).

In case of Abdul Wahid vs State Of Maharashtra[10]the Hon’ble Bombay High Court observed that- 

“In our view the correct position is that therefore the right accused to the accused who is in custody, under the proviso to sub-section (2) of S. 167, Code of Criminal Procedure, can be exercised by him only before the charge-sheet is filed. If, however, he continues to be in custody because no order granting him bail is passed under that proviso, the Magistrate’s power of granting bail once the charge-sheet is filed, can be exercised only under S. 437 of the Code. In the latter case the right to bail cannot be claimed under the proviso to sub-section (2) of S. 167 of the Code. The reference is answered accordingly.”

Also, section 436A provides for the maximum period for which an undertrial prisoner can be detained which is extending for a period up to one-half of the maximum period of imprisonment specified for that offence under the law.

A full bench of the Bombay High Court at Nagpur Bench in case of Maksud Sheikh Gaffur Sheikh v. State of Maharashtra,[11]  has held that the benefit under Section 436-A of the Code of Criminal Procedure can be extended to an undertrial prisoner only, not a convict who has challenged his conviction under Section 374 of CrPC.

[1] 1978 AIR 1594, 1979 SCR (1) 335

[2] 1979 AIR 777, 1979 SCR (2) 717

[3] Book- “The Nature of Judicial Process” by Author Benjamin N. Cardozo in 1921- Publisher Yale University Press 

[4] 2000 (3) Crimes 521 

[5] Khemlo Sakharam Sawant v. State, 2002 (1) Bom CR 689 (Panaji Bench)

[6] AIR 1993 SC 1 : 1992 AIR SCW 2621

[7] 2001 All MR (Cr) 713: AIR 2001 SC 1910

[8] Criminal Appeal No. 15 of 2021 arising out of SLP (Crl.) No. 5715 of 2020

[9] (1977) 4 SCC 410

[10] (1991) 93 BOMLR 478, 1992 CriLJ 1900


Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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