Introduction

Generally, bail can be stated as such a legal mechanism that enables an accused of a crime to
be released from custody, pending trial or conclusion of a trial after imposition of condition to
appear before the court whenever it deems so. In India, Bharatiya Nagarik Suraksha Sanhita,
2023 is the governing law surrounding bail wherein the provisions of the same state the whole
process of bail of accused whether it be a bailable offence or a non-bailable offence and further,
how the concept of bail bond and bond works accordingly, additionally the apex court and
various high courts have identified bail and certain conditions to grant bail which would further
enhance our research upon the topic.

Bail & It’s Kinds

According to Section 2(1)(b)1, ‘Bail’ can be termed as “release of a person accused of or

• Regular Bail
• Anticipatory Bail
• Interim Bail
1. Regular Bail
Regular Bail is the formal legal mechanism through which an accused person assures
their liberation from custody upon certain conditions being imposed therein balancing
their liberty rights with law requiring them to ensure their presence in due course of
trial proceedings. This kind of bail is granted in both conditions when either the person
has been accused of bailable offence or the person is accused of a non-bailable offence.
❖ Bail Over Pretext of Bailable Offences
According to Section 478(1) of the Bharatiya Nagarik Suraksha Sanhita when a person
accused of a bailable offence is arrested or detained without warrant by an officer in-
charge of a police station or appears or is brough before a Court and is prepared at any
time whilst he is in custody of such officer or at any stage of proceedings before such
Court to give bail, such person shall be released on bail. The provisions further state

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 that in case such accused person is indigent and is unable to furnish surety then any
such officer or Court if it deems fit may discharge such accused person on his executing
a bond for his appearance on future hearings instead of taking bail bond from such
person. Additionally, Section 478(2)2 states that whenever a person fails to comply with
the conditions imposed through the bond or bail bond as regard to the time and place
of attendance, the Court may refuse to release him on bail, when on a subsequent
occasion in the same case he 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 bound by such bond to pay penalty thereof. From the provisions we get that in
case of bailable offences the accused is generally granted bail upon imposition of
certain conditions by the court, mainly adherence towards appearance in the due course
of trial and the judiciary in it’s various decisions have interpreted the provision we have
discussed. The Supreme Court in Moti Ram & Ors v. State of Madhya Pradesh3, has
emphasized that bail shouldn’t be denied in bailable offences and also the conditions
imposed must not be unreasonable. Furthermore, in Rasiklal v. Kishore Khanchand
Wadhwani4, the hon’ble Supreme Court reaffirmed that bail in bailable offences
indulges within rights and the courts cannot impose any such conditions that
purportedly deny bail. Additionally, in Vaman Narayan Ghiya v. State of Rajasthan5,
the apex court clarified that bail conditions should be proportionate and not arbitrary
thus, guaranteeing accused’s right to liberty.
❖ Bail Over Pretext of Non-Bailable Offences
Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023 states regarding bail in
case of non-bailable offences whereby the provisions of the same state that when any
person accused of or suspected of commission of any non-bailable offence is arrested
or detained without warrant by an officer-in-charge of a police station or appears or is
brought before a Court then he may be released on bail, but:-
i. Such person shall not be released if there appear certain reasonable grounds for
believing that such person has been guilty of an offence punishable with death
or imprisonment for life;

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Bharatiya Nagarik Suraksha Sanhita, 2023
3
Moti Ram & Ors v. State of Madhya Pradesh 1978 AIR 1594
4
5
Vaman Narayan Ghiya v. State of Rajasthan AIR 2009 SUPREME COURT 1362
 ii. Such person shall not be entitled to be released if such offence is a cognizable
offence and he had been previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for seven years or more, or he had
been previously convicted on two or more occasions of a cognizable offence
punishable with imprisonment for three years or more but less than seven years.

The provisions further state that if the person accused is a child or a woman or is
sick or infirm then the court may direct such person to be released on bail therein
and if there be presence of any other special reason then the court upon it’s
satisfaction direct such person to be released on bail. The law furthermore states
that the court must provide the Public Prosecutor an opportunity of being heard
before granting bail accused if the offence alleged to have been committed by him
is punishable with death, imprisonment for life or imprisonment for seven years or
more. Clause (2) of Section 4806 states that whenever it appears to an officer or
Court at any stage of investigation, inquiry or trial as the case may be that aren’t no
grounds reasonable enough to believe that the accused has committed a non-bailable
offence but there are sufficient grounds for further inquiry upon accused’s guilt then
he shall subject to provisions under Section 494 and pending such inquiry be
released on bail or at the discretion of such officer or court may be subjected to
execution of a bond for his appearance whenever required. Clause (3) of Section
480 states that when a person accused or suspected of commission of an offence
punishable with imprisonment which may extend to seven years or more or of
offences under Chapters VI,VII & XVII of the Bharatiya Nyaya Sanhita, 2023 or
abatement of or conspiracy or attempt to commit any such offence is released on
bail then the court shall impose following conditions:

a) that such person shall attend in accordance with the conditions of the bond
executed;
b) that such person shall not commit an offence similar to the offence of which
he is accused or suspected of the commission of which he is suspected; and
c) that such person shall not directly or indirectly make any inducement, threat
or promise to any person acquainted with the facts of the case so as to

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 dissuade him from disclosing such facts to the Court or to any police officer
or tamper with the evidence

and may impose any such conditions as the it may deem necessary. Further,
Clause (4) of Section 480 states that any officer or a Court releasing any person
on bail shall record in writing the reasons for granting such bail. Clause (5) of
Section 480 further states that any court that has granted bail to any person may
if it deems it necessary so to do then direct that such person be arrested and
commit him to custody. Furthermore, Clause (6) of Section 480 states that if the
trial of a person accused of a non-bailable offence isn’t concluded within sixty
days from the first date fixed for taking evidence in the case and such person
has been in custody during the said period then shall be released on bail upon
satisfaction of the magistrate. Lastly, Clause (7) of Section 480 states that if at
any time after the conclusion of the trial of a person accused of any non-bailable
offence and before judgement is delivered, the court is of the opinion that
reasonable ground exists that the accused isn’t guilty of such offence then the
court shall release such accused on bail upon execution of bond for his
appearance to hear judgement delivered.