The basic rule

Bail is governed principally by Section 497 of the Code of Criminal Procedure 1898. The section divides offences into two broad classes. Where the offence is punishable with death, imprisonment for life or imprisonment for ten years – the so-called prohibitory clause – bail is the exception. For all other offences, bail is the rule and refusal is the exception.

Further inquiry

Section 497(2) allows bail where there are no reasonable grounds for believing the accused is guilty but sufficient grounds exist for further inquiry. In practice this is the workhorse provision. Unexplained delay in lodging the FIR, absence of recovery, contradictions between witnesses, and a background of civil litigation between the parties are all recognised indicators.

Pre-arrest bail

Pre-arrest bail under Section 498 is an extraordinary remedy. It is granted where the prosecution appears to be motivated by mala fide or an ulterior purpose – to humiliate, to extract a settlement, or to pressurise a party in a civil dispute. Mala fide must be pleaded with concrete particulars. A general allegation of enmity is rarely enough.

What courts actually weigh

Beyond the legal tests, courts look at the antecedents of the accused, whether they are a first offender, whether they joined the investigation, whether reliable sureties are available, and whether they are a local resident unlikely to abscond. Delay in trial, particularly where the accused has been in custody for a long period without progress, has become an increasingly important ground.

Practical advice

Deal with the prohibitory clause head on in your very first paragraph. If the offence falls within it, explain precisely why the case is one of further inquiry. Attach the FIR, the medico-legal report and the relevant police record. Vagueness at the bail stage is fatal.