Provisions related to Mandatory and Discretionary Bail: An Analysis

By | October 6, 2019

Bail can be a matter of right or privilege granted by the courts. It is always dependant upon the nature and gravity of the offence. Therefore, the Code of Criminal Procedure, 1973 entails for two types of bail on the basis of the gravity of the offence; Mandatory Bail and Discretionary Bail.

A person may demand his liberty as a matter of Constitutional Right and also by the virtue of being a human being. But, with the passage of time, liberty would mean differently to each soul. Thereby, the need for a social contract between the state and its people. The Right of a person to move freely is very well inscribed in the words of the Constitution under Article 21, prohibiting the deprivation of a person’s liberty.

However, this liberty is subject to the rules of the society or in a legal sense, the laws made by the parliament. And when such laws are violated by a person it may result in the commission of an offence under the Indian Penal Code, 1860. However, the nature of the offence is the determinant of whether the person is “enlarged on bail”.

Enlarged on Bail

The phrase enlarged on bail necessarily means that the person shall/ may depending on the nature of the offence will be released in return of the security. This security is taken by the magistrate who is empowered to release a person on bail on in return of a bail bond.

This bail bond is the amount paid by the accused with or without sureties as declaring that he/she shall be available and produce himself in any inquiry or trial and not flee or absent oneself during such occasions.

Bail: It’s Meaning

Bail is a declaration made by the accused that he shall not flee if enlarged on bail and shall not absent himself from any inquiry or legal proceeding he is required to attend. The court if deems fit may pass an order to enlarge the person on bail. For a deeper understanding, it needs to be stated that Bail is of two types:-

  1. Mandatory Bail
  2. Discretionary Bail

The provisions specifically dealing with Mandatory Bail is Section 436 of the CrPC. This provision entails that the person arrested without the warrant of the officer of the court, the person shall be released on bail. Since this is a ‘shall’ provision it needs to be understood that the discretion of the court does not apply in such a provision.

The word ‘shall’ indicates that it is a matter of right of the accused if he is not charged with a non-bailable offence he has to be released or enlarged on bail. This provision further gives a right to the accused person that he may further be released only on the basis of executing a bond and the requirement of sureties to the bond is not required. Since this provision clearly reflects that the bail under this is a matter of right and there is no discretion of the court. Therefore this bail becomes a Mandatory Bail.

On the other hand, ‘discretion’ entomologically means that ‘to be able to circumspect’. In simple terms, the court under section 437 envisages the power to use its mind while determining whether the accused person should be enlarged on bail.

Now under section 437 of CrPC, it is stated that under certain conditions bail may be taken for a Non-Bailable offence however it is a nugatory provision. Which means that it stated certain conditions when bail cannot be granted and they are:

  • That an accused need not be enlarged on bail if there are reasonable grounds to believe that the person is involved in the commission of an offence which is severe in nature. The severity is marked by the threshold of two punishments, namely, life imprisonment and capital punishment or execution.
  • That the accused may not be enlarged on bail if the accused’s previous convictions entail that he/she has been convicted of an offence which is punishable for seven years or more under the IPC and is a cognizable offence.
  • However, the proviso protects an accused who is below the age of sixteen years, or is a woman or is sick or infirm in any way. Thereby this provision contains certain protection provisos as well.
  • Since it is a discretionary bail the court may use its discretion and if under the circumstances of the case believes that it shall be just and proper to release the person on execution of the bond it may do so.
  • It furthermore, highlights that the mere fact that the accused needs to be identified in a Test Identification Parade cannot be a sole reason for denial of the bail.
  • But keeping in line, that the accused may flee or absent himself, to ensure un occurrence of such an incident the accused shall execute a bond ensuring that he shall not flee away at times when he is required to present himself.
  • The provision states that if within sixty days of his arrest if it is seen that the trial of such person who is charged with a non-bailable offence is concluded from the date fixed for taking evidence, the magistrate on his accordance if he deems fit, may release the person on bail.
  • This provision further includes that at any point of the trial the court has reason to believe that the person accused charged with the non-bailable offence and has reasonable grounds to believe so then at its discretion may release the person on executing a bail bond without sureties.

Section 439 of CrPC

This provision is different from section 437 because this provision is court specific. It only applies in a Court of Sessions and a High court. But this provision is no different from section 437, this also gives discretionary power to the abovementioned courts to grant bail to a person, subject to the conditions imposed by the court itself.

This provision only applied to persons who are charged with any offence mentioned under section 437(3) of CrPC.  Further, this provision also empowers the court of sessions and high court to bring into custody an accused released on bail.

Section 438 of CrPC

The nature of bail envisaged under this provision is entirely different from any of the other provisions mentioned above. However, one peculiar feature remains the same. That is the power of the court to exercise its discretion to grant such bail.

Now this provision mainly comes in effect when a person who has an apprehension that he may be charged with commission of an offence, and he has a reason to believe that such allegation is false and frivolous then this provision comes to act as a safety net for such persons who may be arrested on to pretext of false allegations by a person whose intention may be merely to tarnish the reputation or cause hardships in the life of the person.

Therefore this provision is protection or a safeguard for such persons. But for a court to grant such anticipatory bail becomes equally difficult. Because while hearing such bail application it is only one side of the incident which is narrated to the court. Therefore it is a duty imposed upon the court to very cautiously allow such grant of bail called the “Anticipatory bail”.

Difference between Mandatory and Discretionary Bail:

From the above-mentioned bails, it is very clear that mandatory bail is a matter of right given to a person who is accused of a bailable offence in the CrPC itself by the legislature to ensure that a person is not deprived of his liberty in times of accusations which may not be very serious in nature. Due to its not very serious and grave nature, it is the right of a person to take to his advantage such a right which gives him his liberty also guaranteed under Part III of the Constitution. The list of bailable offences is provided for under the first schedule of the CrPC.

On the other hand, discretionary bail as the name itself suggests gives a discretion to the court to apply it judicial mind and only then decide whether an accused is worthy of a grant of bail by the court. It is only if the court sees that there is a reasonable ground that he may be released on bail since the person is charged with the commission of a Non-bailable offence.

Now, these offences are more grave and serious in nature, therefore, bail is no longer a matter of right whereas its nature is that of privilege and only court at its discretion may grant bail to a person accused of a non-bailable person. It is only when the court is of the view that the accused will not tamper or interfere in the course of investigation for a free and fair trial and has reason to believe that the person under no circumstances shall flee or absent himself when his attendance is required only under such circumstances the court may grant bail to the person.

Therefore, it needs to be understood that when bail kept juxtapose to the commission of an offence, bail is a way in which the liberty of a person is protected and safeguarded.

However, when a person commits an offence like rape or murder which is grievous in nature, this same person becomes a threat to the society as well as the completion of the investigation and under such circumstances, it is required by law to deprive such person of his liberty to safeguard the entire society at large. Therefore, there are two types of bail tailor-made to the needs of society.


  1. Grounds and Procedure to Appeal from an order of a Trial Court in a Criminal Case(Opens in a new browser tab)
  2. Right of an Accused Person to Defend Himself under CrPC(Opens in a new browser tab)
  3. Jurisdiction and Enforcement of the order of the Magistrates under Section 125(Opens in a new browser tab)
Ashish
Author: Ashish

Ashish has a flair for legal research and writing on contemporary issues. He believes the law is not a course but a Value Education subject that everyone should be taught at the school level. Belonging to the legal fraternity, he owes a responsibility to the future law aspirants and tries to assist them through their law school until they chose a career in law.

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