Bail and Bail Bonds under the Criminal Procedure Code, 1973

Bail and bail bonds under Criminal Procedure Code


What is Bail ?

When according to the criminal procedural law any person being accused of committing any offence mentioned under the law was arrested but is being temporarily released from such arrest, then such release is called BAIL.

Here an accused is released from the custody of police for some short period of time on the basis of the guarantee provided by 1 or 2 persons named as sureties.

What are Bail Bonds ?

It’s a green coloured document filled during a bail. This document is filed up the Police Officer or the pleader where the accused’s information, his offence and charges against him, the date of bail, no. of days of bail, the reason of bail and amount of bail-bond. It is signed by the Magistrate who granted the bail, the police officer and verified by the two sureties.

Provisions related to Bail

According to the criminal procedural law code, the provisions of the Bail are mentioned under chapter 33 from section 436 to 439.

In aspect of Bailable offence

  • According to Section 436 – In what cases bail to be taken

This section states that any person charged under a bailable offence is in police custody on basis of arrest without a warrant, then such a person can be released on bail either by the police in-charge or by the court. There is no need for sureties for him but needs to submit the bond for release.

It so because in case of Waman N. Gihye vs. State of Rajasthan[1], the court said that right to bail in a bailable offence is a legal right under Article 21 of the Constitution.

According to the case of Dharmu Naik vs. Rabindra Nath Acharya, the appeal against the order for bail release or refusal can be filed either in the Court of Session or in the High Court according to section 439 of the code.

  • Section 436-A – Maximum period for which an undertrial prisoner can be detained

This section states that the period of detention for an offender of a crime whose punishment is less than life imprisonment or death penalty, such a person can be released if he has already been in detention for half of the period of the punishment for that offence committed by him.

In aspect of non-bailable offence

  • According to Section 437 – When bail may be taken in case of a non-bailable offence

It states that if any person has been detained without a warrant for any non-bailable offence, then through court’s or the police officers discretion, a person so arrested can be released on bail if there is a reasonable ground that punishment of that offence is not death penalty or life imprisonment, is not a cognizable offence, the person has not been convicted before for any such cognizable offence.

If any of this element is found, then no such person will be given bail either he has any special reason, if she is a sick woman or a child under the age of 16 years.

A person in ongoing investigation or inquiry can be realized on bail at the discretion of the police or the court if they think it fit according to section 446-A

The reason for bail must be recorded by the police officer

Thus elements to be considered while giving bail under a non-bailable offence are[2]

  • Nature of offence or charge, accusation,
  • Character of evidence
  • Severity of sentence
  • Possibility of absconding
  • Apprehension of tampering with evidence or witnesses
  • Appearance , health and conduct of accused
  • Public safety
Cancellation of Bail

Although this section states that the court can cancel the bail or refute the free temporary time given to the accused as it thinks fit, but bail given by the police can only be challenged under Courts of Sessions or High Court and not in the Court of the Magistrate according to the section 439 of the code[3].

  • Section 437-A – Bail to require accused to appear before next appellate

This section states that according to the trial court or appellate court the accused has to execute the bail bonds along with the sureties which will be in force for 6 months in reference to appearance to a higher court.

If such is not followed then the accused will be penalized under section 446 of the code.

Anticipatory Bail
  • Section 438 – Direction for grant of bail to person apprehending arrest –

If any person is having an apprehension that he can be made liable for commission of any non-bailable offence, he may apply for an anticipatory bail in either Court of Sessions or the High Court. The competent court under this section will direct that such person when arrested will be released on bail after taking into consideration different factors for this type of bail. These elements base the acceptance or refusal of the bail

The factors of anticipatory bail are –

  • The accusation made shall be grave and serious
  • Likelihood of the applicant to flee or abscond from justice
  • When the accusation is made with the intention of humiliating or injuring the person by making him arrested through that accusation.

Following other conditions are-

  • There must be apprehension of arrest
  • The arrest must be made for non-bailable and cognizable offence
  • Person so granted with anticipatory bail must follow the routine of appearance in the court or police for the smooth going of the investigation.
  • Such person must not induce or threaten for disclosing the facts.
  • He must not go out of India without the court’s permission.

In case of Amiya Kumar vs. State of West Bengal, the court held that as according to the provision of section 438 both the Sessions Court and High Court have the right to grant this type of bail, but if Sessions Court rejects any such application, then an appeal cannot be filed further in the High Court against this.


But in the case of D.R. Naik vs. State of Maharashtra, the court said that if the application is rejected in Sessions Court, then a fresh application can be filed in High Court.

SECTION 439 – Special Powers of High Court or Court of Sessions regarding bail

This section states that if any person has been released on bail, then either court can impose a condition on him if comes under the (3) of Section 437 and if any such condition has been imposed by the Magistrate, they can also set aside it or modify it as it thinks fit. Also, the order given by the Magistrate to the judge of Session’s Court is appealable in nature.

They can even refute the bail orders back and can detain back the person so released.

Provisions for bail bonds

From section 440 to section 450 are the provisions for Bail Bonds under chapter 33 of the Criminal Procedure code

SECTION 440 – Amount of bond and reduction thereof

This section states that the amount of all types of bonds for different offences will be fixed and will not be excessive. It can also be reduced on the order of the High Court or the Sessions Court

SECTION 441 – Bond of accused and sureties

According to this section, at the time of bail, the accused has to execute the bond along with the sureties(accepted based on an affidavit and original credentials), where any certain condition has been imposed on him and will be mentioned in the bond as well. He has to appear even during his bail period in the Sessions Court or the High Court on their summon.

SECTION 442 – Discharge from custody

This section states that if the bond has been executed, then the court will order for the bail directing the police in charge to release such an accused.

SECTION 443 – Power to order sufficient bail when that first taken is insufficient

This provision specifies that if the sureties so provided were originally insufficient and placed through mistake or fraud or had now become insufficient, then the court may issue a warrant for the arrest of the accused. The accused will either be committed to jail or can provide with new sufficient sureties. 

SECTION 444 – Discharge of sureties

According to this section, the surety(s) if approaches the magistrate after the bail to discharge the bail bond wholly or partially, then the Magistrate will issue a warrant of arrest against the accused and commit that person to jail. 

SECTION 445 – Deposit instead of recognizance

This section states that except the bond of Good Behaviour, may order the person to execute the bonds in cash or other consideration as required.

SECTION 446 – Procedure when the bond has been forfeited

According to this proviso of the code, if any bond which has to be executed or has been executed is now forfeited, then the court may provide the person from whom the bond has been executed an opportunity of hearing for the explanation regarding the forfeiture of the bond to the court. If such a person fails in it then will be penalized. Here forfeiture means non-compliance with the condition imposed or the nonappearance in court.

SECTION 446-A – Cancellation of bail and bail bond

This section states that if the bond has been forfeited, then the bond either personal or the sureties bond will be said to be cancelled and the warrant will be issued against the accused. If the non-compliance was not done by the accused himself then he may be given another as the court and police think fit.

SECTION 447 – Procedure in case of insolvency or death of surety or when a bond is fortified

According to this section, if one of the surety becomes insolvent or dies then the Magistrate may either order for fresh security to be furnished according to the original bail order. But if such is not furnished then the court will mark it as a non-compliance of the order.

SECTION 448 – Bond required from minor

This section states that the bail bond in case of a minor will only be executed by the sureties and not the minor’s personal bond.

SECTION 449 – Appeal from orders under Section 446

It states that the appeal can be made either to Sessions Court or to the court to which an appeal lies from an order made by such court.

SECTION 450 – Power to direct levy of the amount due on certain recognizance

The Sessions Court or the High Court may direct the Magistrate to levy the bond amount due on the appearance of the person in both these courts


It can be concluded that the concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released on a temporary basis but needs to appear in court whenever required by the court. The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from police custody. These provisions envisaged in the code gives the brief regarding the provisions of the bail. The process of bail is a legitimate process.

Bail and Bail Bonds under the Criminal Procedure Code, 1973

Also Read: Procedure when Investigation for a Criminal Offence is Completed

[1] 2009 Cri LJ 1311 (SC)

[2] State of Rajasthan vs. Balchand (AIR 1977 SC 2447)

[3] Parakshita Pradhan vs. Bairagi Pradhan (1991 Cri LJ 1519 Ori.)

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