BAIL OR JAIL? 10 Factors Which The Court Considers While Granting Bail

Did You Know That Getting A Bail Is Amongst The Most Difficult Challenges For A Criminal Lawyer?

Before I tell you, what are the crucial factors which the court considers while granting or dismissing a bail application, let me give you a theoretical background on the laws of bail.

Bail is the release of a person who is under arrest or who has already appeared in court, in exchange for a promise to appear in court whenever he will be asked to appear.

What Does The Court Consider While Granting Bail?
Bail is The Rule Jail Is The Exception

What are the various factors considered by the judges and the court while granting or dismissing a Bail Application?

A person who is in custody, because he or she has been charged with an offence or is involved in pending criminal proceedings, may apply to be released on Bail. Normally, in signing a bail bond a person undertakes that he will be present every time the matter is in court until the proceedings are finished and will also comply with the conditions set out in the agreement as to conduct while on Bail and Concerned Authority may forfeit a specified sum of money if the person fails, without proper excuse, to comply with any term or condition of the agreement.

 Bailable and Non-Bailable Offences 

An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable offence is an offence of relatively less severity and for which the accused has a right to be released on bail.

While a non-bailable offence is a serious offence and for it, the accused cannot demand to be released on bail as a matter of right.

More specifically, Section 2(a) defines Bailable Offence as well as Non-Bailable Offence as follows:

Section 2 (a) of CrPC– “Bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force: and “non-bailable offence” means any other offence.

The first schedule of the CrPC is divided into two parts wherein the first part deals with the offences given under IPC and the second part deals with the offences under other laws.

As per the last item of the First Schedule, an offence in order to be bailable would have to be an offence which is punishable with imprisonment for less than three years or with fine only.

In case of bailable offences, as per section 436 CrPC (criminal procedure code 1973), bail has to be granted to the accused as it is a matter of right for the accused to demand and be granted bail.

In case of non-bailable offences, as per section 437 CrPC and Section 439 CrPC, the grant or refusal of the bail is a matter of discretion of the court which means bail can be granted by the court.

The only condition is that it cannot be demanded as a right by the accused. 

Section 437 CrPC lays out certain basic criteria for the court while exercising its judicial discretion for grant or refusal of the bail in case of non-bailable offences, some of the criteria are the nature of the offence, past criminal record, the probability of guilt, etc. and carves out exceptions for minors, women etc.

Section 438 CrPC also lays down the concept of Anticipatory Bail where the accused may seek bail if they apprehend arrest, so as to prevent even the otherwise brief incarceration. It must be noted that the grant or refusal of anticipatory bail is also a matter of discretion for the court.

There is catena of judgement which specifically states that “bail is a rule and jail is the exception”. 

Procedure In order to apply for a bail in the case of a bailable offence i.e. when a person has right to be released on bail, the person needs to fill a form of bail i.e. Form No. 45 which is given in the first schedule and apply for bail and the Court shall grant bail.


CASE TITLE: State Through C.B.I vs Amaramani Tripathi 
BENCH: Ashok Bhan, R.V. Raveendran


Supreme Court observed that it is well settled that the following factors are to be considered in an application for bail:

  • whether there is any prima facie or reasonable ground to believe that the accused had committed the offence
  • nature and gravity of the charge;
  • the severity of the punishment in the event of conviction;
  • the danger of accused absconding or fleeing if released on bail;
  • character, behaviour, means, position and standing of the accused;
  • likelihood of the offence being repeated;
  • reasonable apprehension of the witnesses being threatened; and
  • danger, of course, of justice being thwarted by grant of bail
  • While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.
Please share with friends and relatives. You never know who could be benefitted by this information.
Kindness costs nothing.
Adv.Sidharth Arora 
Supreme Court of India 
+91-9599200768 +91-9560601768 
A-1/121 Janakpuri, New Delhi. 

DISCLAIMER: Through this article, we wish to help those who are in genuine need of help and are willing to understand the law. This is not a solicitation, advertisement or a substitute of professional legal advice. It does not create any client-attorney relationship.

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