Introduction:

The concept of bail is not new. Basic Philosophy behind the concept of bail is that accused should be released from the
custody of law enforcing agency into the custody of sureties. This is an interim order which can be withdrawn by the court
at any stage according to circumstances.
2. Relevant Provisions:
Section 496, 497 and 498 of Cr.P.C is a relevant provision
3. Meaning of Bail:
Bail means the security, which court requires for release, of some accused. It is, in fact, transfer of accused from judicial
custody to sureties with this condition that sureties will remain bound for future appearance of accused in court whenever
accused appearance will be required.
4. Kinds of Bail:
Bail is of the following three kinds.
Bail after Arrest / Post Arrest Bail:
It is a bail which is granted to the accused person, after his arrest, both in bailable and non-bailable offence. When the
accused has been arrested by the law enforcing agency, bail may be generated to him under section 496 or 497 of Cr.P.C.
7. Pre-conditions or Essential Ingredients of confirmation Post-arrest / After-arrest bail
For confirmation of post-arrest (after arrest) bail, following are pre-conditions or essential ingredients:
i. Prohibitory Clause:
According to Section No. 497 of Criminal Procedure Code, post-arrest bail cannot be granted when there exists reasonable
grounds for believing that petitioner has been guilty of that offence, which is punishable with death or imprisonment for
life or imprisonment for ten years. It reveals that pre-condition or essential ingredient for confirmation of post-arrest bail
is that alleged offence should not fall within prohibitory clause of Section No. 497 of Criminal Procedure code.
ii. No Reasonable Ground for commission of Non-bailable offence:
Another pre-condition or essential ingredient for confirmation of post-arrest bail is that there should be no reasonable
grounds for believing that accused has committed non-bailable offence.
iii. Sufficient grounds for further Inquiry:
For confirmation of post-arrest bail, there should also be sufficient grounds for further inquiry into guilt of accused.
iv. Bail Bond:
Post-arrest bail can be confirmed when accused is ready to submit bail bond in prescribed manner under Criminal
Procedure Code
Bail before Arrest / Pre-Arrest bail/anticipatory bail:
Bail before arrest is a bail which is granted in a case where court feels perhaps accused has falsely involved in case and he
is likely to suffer irreparable injury to his dignity, honor, or reputation by his arrest.
6. Pre-conditions or Essential ingredients of Confirmation of Pre-arrest / before arrest Bail
Following confirmation of pre-arrest / before arrest bail, following are pre-conditions or essential ingredients:
i. Ulterior Movies:
Arrest of petitioner should be for some ulterior motives. In fact, there should be doubt that motive for involvement of
accused in some criminal case in not pure. If ulterior motive is proved, pre-arrest bail can be confirmed. If it is also proved
that apprehension of imminent arrest, humiliation and unjustified harassment of accused due to some ulterior motive or
mala fide on part of authorities or other influential persons.
ii. Heinousness of offence:
Heinousness of offence is of no importance as far as granting of pre-arrest bail is concerned. In fact, pre-arrest bail cannot
be refused due to heinousness of offence.
iii. Commission of offence:
Pre-arrest bail can be confirmed when investigation is completed and it shows that accused has not committed offence.
iv. Physical Surrender:
Petitioner / accused should physically surrender himself before court. It means that no pre-arrest bail can be granted to
absconder.
v. Fit case:
Case of petitioner should be fit case so that court can exercise its discretion of confirmation of bail. If case of petitioner is
fit case for court to exercise its discretion, pre-arrest bail can be granted.
vi. Bail Bond:
Pre-arrest bail can be confirmed when accused is ready to submit bail bond is prescribed manner under Criminal
Procedure Code.
Note: In bail before arrest, registration of case is necessary.
Protective bail:
The protective bail is granted under section 498 of the Criminal Procedure Code, 1898 to an accused to enable him to
approach the concerned court of the other provinces for the purpose of obtaining pre-arrest bail without touching its
merits. Superior courts can entertain application for protective bail and can grant relief to the accused in appropriate cases
where the accused could, inter alia, establish that he is prevented from approaching the concerned lower court. The
accused obtain the Protective Bail from High Court and present this Protective bail before Session Court to get its
Confirmation and attend the concerned court and face the trial.
iii. Bail after Conviction:
It is granted when after conviction of accused, the appeal has been accepted for hearing and the court observes that there
are grounds for the release of the accused, therefore, it accepts the bail petition and allows bail also under section 426.
5. Kinds of Bail by Nature:
By nature, bail may be divided into following two kinds.
i. Interim Bail:
It is a bail which is granted by the court without hearing the prosecution for a specified period of time. E.g. in bail before
arrest.
ii. Permanent or Confirmed bail:
It is a bail which is granted by the court after hearing both the parties, i.e., petitioner and prosecution.
8. Ground for granting of bail in Non-bailable offence:
Following are grounds upon which bail can be taken or granted in non-bailable offence:
i. Personal enmity:
When it is proved that there exists personal enmity between accused and complainant, bail can be taken in non-bailable
offence.
ii. Rule of Consistency:
If co-accused of some non-bailable offence has already been granted bail, bail of petitioner / other co-accused can be
taken. It reveals that rules of consistency can be ground for granting bail.
iii. Child or Woman:
When accused / petitioner is child or woman, bail can be taken in non-bailable offence.
iv. Sick or Infirm Person:
When accused / petitioner is sick or infirm person, bail can be granted in non-bailable offence.
v. Insufficient evidence:
If insufficient evidence is available against commission of alleged non-bailable offence, bail can be taken.
vi. Doubt or Recovery:
When facts and circumstances of criminal case of non-bailable offence are like those that such case become doubtful or
nothing is recovered from accused, bail taken in non-bailable offence.
vii. Delay in Registration of FIR or Trial:
When there is delay in registration of FIR and no sufficient ground is present for such delay and delay in trail, bail can be
granted in bailable offence.
Conclusion:
To conclude, it can be started that bail in case of bailable offence is matter of right and it should be granted in cases of
bailable offence. However, bail in case of non-bailable offence is not a matter of right. Rather it is a statutory concession,
which court can grant in exceptional circumstances where pre-conditions or essential ingredients for granting of bail exist.