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Author: Radhika Dinesh, I year of B.Com.,LL.B.(Hons.) from Institute of Law, Nimra University


Bail is the conditional temporary release of an accused for an amount of money. In a civil case, bail is a right of the accused, while in criminal cases, bail is left to the discretion of the courts.Provisions for bail in non-bailable offences isenumerated in sections 376 and 377 of the Indian Penal Code, 1860.

Non-bailable offences are serious offences in which bail is a privilege granted by courts. The decision of granting bail is left to the discretion of courts and it is not a right that ca be exercised by the accused.

According to section 376, bail can be granted in non-bailable offences in the following situations-

  • False Charges

  • Lack of Evidence

  • In case of Juveniles

There are three types of bails according to IPC;

  • Regular Bail

  • Anticipatory Bail

  • Interim Bail

Out of these three, the article will mainly focus on regular and anticipatory bail.

Anticipatory bail was incorporated into section 438 of the Indian criminal code in 1973 upon the Law Commission’s recommendation in its 41st report.Based on the principle of “innocent until proven guilty”, the provision aims at protecting people from unreasonable arrest. The provision was introduced in order to prevent the rising number of arrests infalse cases of cruelty, dowry, and other accusations with a malice. Granted only by high courts or sessions courts, a person can seek bail in anticipation of arrest for committing an un-bailable offence, provided there are reasonable grounds for the anticipation.

Regular bail on the other hand is granted to persons already arrested or is in police custody. Regular bail is granted by courts under sections 437 and 439 of CrPC after the arrest of the person.

Many events in recent past have shown how society has taken matters into their own hands and dealt with accused despite the courts granting the accused bail. The present article aims at bringing to light how granting bail in non-bailable offences can often hamper the process of justice and thus lead to people losing faith in the system.


i) Why is bailin cases of non-bailable offences necessary

A provision for anticipatory and regular bail in non-bailable offences facilitates wrongful arrests and subsequent punishments.Upon the introduction of anticipatory bail in 1973, there has been a significant decrease in the number of wrongful arrests in cases of dowry, domestic violence, and sexual harassment.According to a survey of National Crime Records Bureau in 2013, out of 1,18,866 dowry cases registered every year, 10,864 are false allegations.This statistic alone shows how the provision has brought significant change in:

a) False arrests and the impact of it on the accused’s life

b) And wastage of court’s time

ii) How sometimes bail can deter the justice process

Bail, especially anticipatory bail, can often lead to loss in people’s faith in the justice system. In non-bailable offences such as rape, it is very difficult to prove the case unless there is physical evidence. Hence, there has always been a high rate of bail being granted in such cases. In most cases even if the assault has occurred, the accused walks away on bail on grounds such as:

  • Nature and gravity of the allegation

  • Lack of sufficient proof and evidence

  • Accusation was made out of malice for the purpose of humiliating the accused

  • There is no possibility of the person fleeing from justice and the past criminal record of the person.


Under Article 21, right to personal liberty is one of the most important rights of the citizens of the country. In the case of Kharak Singh V. State of U.P and Ors, it was maintained that personal liberty includes a life free from interference. It can be inferred that here “interference” means any disturbance caused in a person’s life due to an action of another. By raising false allegations and cases, people stand in the way of another person’s personal liberty and freedom.

Under Criminal Procedure Code, 1973, sections 436-450 discuss the provisions relating to bail. The provision for regular and anticipatory bail are governed by sections 439 and 438(1) respectively, ensures the personal liberty and freedom of one innocent person is not interrupted due to a false allegation filed by another.

As non-bailable offences are much more serious in nature, the conditions to be satisfied to be granted bail is different from that in case of bailable offences. The scope of receiving bail depends on the whether or not the courts are satisfied with the following:

  • The accused guarantees to appear before the court if and when they are required to do so.,

  • Has not committed any similar offence.,

  • Undertakes to not create fear or threats to anyone involved in the case.


In a recent case, Eldose P Kunnapilil, a legislator from Kerala, was held for the physical assault of his long-time friend, a school teacher. It was alleged that legislator had assaulted the woman after she decided to end the relationship. The additional sessions court granted anticipatory bail to the rape accused a week later the case was filed. It is also to be noted that the accused had gone into hiding the day the case was filed.

Logically the fact that the accused had gone into hiding after the case was filednudges one to think that the accused is actually guilty. But due to the lack of sufficient evidence the accused was released on bail on the condition that he show up before the investigating officer during the prescribed time frame. He was also required to surrender his passport to the police and not leave the state.

Like most cases of this nature where bail was granted to the accused before trial, the decision received widespread criticism from general society. This led to the accused’s political party taking strict action against the legislator and he was asked to give an explanation for the allegations.

These instances clearly illustratewhy anticipatory bail granted in cases of non-bailable offences often receive mass criticism. Most cases of physical and sexual assault cannot be proven in courts due to the lack of any other evidence or proof other than the word of the victim. Unless there is some solid evidence such as a witness, footage, or physical marks that can further be proven was left on the victim’s body by the accused, such cases cannot be proved. Hence, there is always a high instance of bail being granted to the accused despite the assault having occurred. More often than not, this leads to the loss in people’s faith in the justice system and in recent events, they have started taking matters into their own hands, whatever the repercussions may be.

In a recent incident in Bihar, the rape accused was tied to a tree and publicly lynched by the victim’s family members and others. The accused had also been arrested several times in the past in cases of sexual assault, all in which he was released. Upon the case being filed in the local panchayat, the accused was awarded a death sentence. Yet due to past decisions of the courts, the public decided to hand out punishment on their own. The accused’s family later on filed a case against the victim’s family for attempt to murder, and a single member of the family was recently arrested. This just further proves that in cases of such heinous crimes where the courts often acquit the accused, the public is willing to deal with whatever repercussions they might face if it means that victim gets some form of justice.


Bail is an inherent right of every individual. It is necessary to understand that the primary objective of a provision such as bail is to give a person who is less likely to be guilty a “benefit of the doubt.” The point of the whole concept of bail is to not take away the personal liberty of an accused during the period of proceedings against them and to ensure that they will appear before the court at the time of trial and will suffer the punishment sentenced by the courts if found guilty.

But more often than not, in the cases of non-bailable offences, anticipatory bail is granted to the accused due to lack of evidence among various other reasons which is mostly not found satisfactory by the public. In such cases, people take it upon themselves to carry out their version of justice since they feel like the actual justice system is not effective.

In conclusion, it is important for the public to understand that the granting of bail by the courts depends on the merits of the case. In order to restore people’s faith, it is necessary to implement the recommendations of the Law Commission’s 268th report, which focuses on the introduction of a fair and more transparent system of bail in the legal system. This would bring huge changes in people’s acceptance and understanding of the provision.



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