Introduction
Bail is a crucial legal mechanism in criminal law that allows an accused person to be released from custody pending trial or investigation, on the condition that they will appear in court whenever required. It balances two important principles:
- The right to personal liberty under Article 21 of the Constitution of India.
- The need to ensure the accused’s presence during trial and to prevent interference in the judicial process.
The power to grant bail in India is distributed among various legal authorities, and who can grant it depends on the nature of the offence, stage of proceedings, and applicable laws.
Definition of Bail
Bail refers to the release of an accused person from legal custody, either by executing a bond with or without sureties, as security for their appearance before a court on a specific date and at all subsequent stages of the proceedings.
Legally, bail is not a form of acquittal—it is only a temporary release from detention until the trial concludes.
Types of Bail Under Indian Law
Before knowing who can grant bail, it is important to understand the main types of bail:
| Type of Bail | Relevant Provision | When Applicable | Granting Authority |
|---|---|---|---|
| Regular Bail | Sections 437 & 439 CrPC | When an accused is in police or judicial custody | Magistrate, Sessions Court, High Court |
| Anticipatory Bail | Section 438 CrPC | Before arrest, when a person apprehends arrest in a non-bailable offence | Sessions Court, High Court |
| Interim Bail | Judicial discretion (not explicitly defined in CrPC) | Temporary bail until regular/anticipatory bail hearing is concluded | Same court which has jurisdiction over the bail application |
| Default Bail | Section 167(2) CrPC | When investigation is not completed within statutory period | Magistrate |
Authorities Empowered to Grant Bail in India
1. Police Officers
Police officers have limited powers to grant bail in cases of bailable offences (Section 436 CrPC).
- If a person is arrested for a bailable offence, the police officer in charge of the police station must release them on bail after taking the required bond/surety.
- The police cannot grant bail in non-bailable offences, except when specifically empowered by law.
Example: If a person is arrested for causing simple hurt (Section 323 IPC – bailable), the Station House Officer (SHO) can release them on bail.
2. Judicial Magistrates
(a) Bailable Offences (Section 436 CrPC)
- Any Judicial Magistrate can grant bail in bailable offences as a matter of right.
- The court cannot refuse bail in such cases.
(b) Non-Bailable Offences (Section 437 CrPC)
- A Magistrate can grant bail in non-bailable offences except when:
- The offence is punishable with death or life imprisonment, and
- The accused is prima facie guilty.
- However, bail can still be granted in exceptional circumstances, especially for women, children, sick, or infirm persons.
3. Sessions Court
Under Section 439 CrPC, the Court of Sessions has wide powers to grant bail for both bailable and non-bailable offences, including those where the Magistrate has refused bail.
- Sessions Court is the primary forum for anticipatory bail (Section 438 CrPC).
- It can also impose conditions like surrendering the passport, refraining from tampering with evidence, or reporting to the police.
4. High Court
The High Court enjoys concurrent powers with the Sessions Court under Sections 438 & 439 CrPC:
- Can grant anticipatory bail.
- Can grant regular bail in both bailable and non-bailable offences.
- Has inherent powers under Section 482 CrPC to secure the ends of justice, which may include granting bail in extraordinary situations.
5. Special Courts & Designated Authorities
Certain special legislations empower Special Courts to deal with bail applications. Examples:
- NDPS Act (Section 36A) – Special Court can grant bail subject to stringent conditions.
- POCSO Act – Special Court has powers to grant bail while considering the safety of the victim.
- Prevention of Money Laundering Act (PMLA) – Special Court under the Act grants bail only after satisfying twin conditions of Section 45 PMLA.
- UAPA (Unlawful Activities Prevention Act) – Bail can be granted only if the court is satisfied there are reasonable grounds to believe the accused is not guilty.
Table: Who Can Grant Bail – At a Glance
| Stage / Offence Type | Authority Empowered | Relevant Section |
|---|---|---|
| Bailable Offence – Before Magistrate’s cognizance | Police Officer | Section 436 CrPC |
| Bailable Offence – During trial | Magistrate / Sessions Court / High Court | Section 436 CrPC |
| Non-Bailable Offence – Before trial | Magistrate (with restrictions) / Sessions Court / High Court | Sections 437 & 439 CrPC |
| Anticipatory Bail | Sessions Court / High Court | Section 438 CrPC |
| Special Law Offences | Special Court / High Court | Relevant special Act |
Important Judicial Pronouncements
- Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 – Supreme Court held that anticipatory bail is a device to secure individual liberty and should be granted on case-by-case basis.
- State of Rajasthan v. Balchand (1977) 4 SCC 308 – “Bail is the rule, jail is the exception.”
- Satender Kumar Antil v. CBI (2022) 10 SCC 51 – Laid guidelines for granting bail and emphasised that arrest should not be mechanical.
Key Points to Remember
- Bail is a statutory right in bailable offences and a judicial discretion in non-bailable offences.
- The power to grant bail is hierarchical—if a lower court refuses bail, the accused can approach a higher court.
- Special legislations may impose stricter conditions for bail.
- Bail does not mean acquittal; it is only a temporary release during trial.
FAQs on “Who Can Grant Bail to an Accused in India”
Q1. Can a police officer grant bail in non-bailable offences?
No, except when specifically authorised by law. In general, for non-bailable offences, bail can only be granted by a Magistrate or higher court.
Q2. Who has the power to grant anticipatory bail?
Only the Sessions Court and High Court under Section 438 CrPC.
Q3. If a Magistrate rejects bail, can the accused approach the Sessions Court?
Yes. Under Section 439 CrPC, the Sessions Court has concurrent powers and can grant bail even if the Magistrate refused.
Q4. Is bail in bailable offences a matter of right?
Yes, under Section 436 CrPC, bail must be granted in bailable offences.
Q5. Can the High Court grant bail in any case?
Yes, subject to statutory restrictions under special laws, the High Court has wide powers to grant bail.
Q6. Who can grant bail in cases under the NDPS Act?
The Special Court constituted under the NDPS Act can grant bail, but only after satisfying the strict conditions under Section 37 NDPS Act.
Q7. Can a Magistrate grant bail in an offence punishable with death?
Generally no, unless the accused is under 16 years of age, a woman, or sick/infirm.
Q8. Can interim bail be granted by police?
No. Interim bail can only be granted by a court having jurisdiction over the matter.
Q9. Can the Supreme Court grant bail?
Yes, under Article 136 and its inherent jurisdiction, the Supreme Court can grant bail in exceptional cases.
Q10. Who grants bail if the case is pending before a Special Court?
The Special Court hearing the case has the power to grant bail, subject to the conditions under the relevant statute.
Q11. Can a person apply for bail to both Sessions Court and High Court simultaneously?
Generally, the application is made sequentially—first to the Sessions Court, and if rejected, then to the High Court.
Q12. Who can grant default bail?
The Magistrate (Judicial or Metropolitan) can grant default bail under Section 167(2) CrPC.
Important: Kindly Refer New Corresponding Sections of Bharatiya Nyaya Sanhita 2023, (BNS); Bharatiya Nagarik Suraksha Sanhita 2023, (BNSS); & Bharatiya Sakshya Adhiniyam 2023, (BSA) for IPC; CrPC & IEA used in the article.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304