Bail While Pursuing an Appeal


Any person, who infringes the law of the land, is obliged to face consequences as per the law and his liberty may be limited depending upon the seriousness of the offence committed. According to Article 21 of the  Constitution, every citizen of India has a right to freedom. Which means that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”[1]

 Every individual who has charged with the accusations of a non-bailable crime is not only authorised to get a solid defence but also has a right to release on bail, on taking into consideration different factors such as nature or gravity of the crime, the quality of the proof, facts which are eccentric to the accused, reasonable anxiety of the witnesses being tampered with, the broader interests of the society or the state and other related factors. The Court has to decide the bail requests at the earliest by systematic order, based on the bona fides of the accused in light of predominating facts and happenings.

Bail While Pursuing an Appeal

A respondent who has been sentenced for a wrong may decide to appeal the sentence. They may have recognised a procedural flaw during the trial, or for example, they may claim that their natural rights were infringed. Even though a person sentenced for wrongdoing, he may be able to post bond and get out of jail during his appeal.A defendant does not have a constitutional right to bail out during the appeal process, as he does while expecting a hearing in a criminal case.

People who post bail or are set free on their “own recognizance” can stay away from jail while their cases are undecided. In some cases, respondents can be let out on bail though they’ve been condemned and sentenced, while they review their convictions.

Though there is no general fundamental right to bail during re-examination of a punishment, bail after conviction is available in particular situations.

Up to the Judge

The option for bail while continuing an appeal will rely on the law of appellant’s state. As some states do not grant bail after conviction, whereas other states authorise judges to decide whether it is suitable and how high it should be. To allow bail, it’s necessary that they feel convinced that the offender will abstain from interfering the proof or eyewitnesses while they are outside confinement. This could impact any new trial that they are allowed.

At times the judge will base their judgment in part on the intensity of the appeal.The defendant can appeal a judge’s decision if they refuse bail or set a high cost, but this usually will not be successful unless the magistrate missed considering relevant factors.

Other Consideration in Determining Bail During an Appeal

Unlike in before trial bail legal proceedings, there is no assumption of honesty after a punishment. Consequently, when a question arises as to whether bail is suitable, maximum states put the onus on the accused to show that it is. Furthermore, the magistrate may examine the same circumstances that are related to after arrest bail conclusions. 

 For instance, they may analyse the criminal history of the accused, any record of failing to present before the judge, their work status, as well as any family relations in the society. If the offender has involved in a rash or negligent act before, the chances of getting bail while pursuing an appeal are very less. The court apparently will find that they are a danger to society and may perform more offences during the plea process. 

1.     Flight Risk

When introducing bail, magistrates determine if a respondent is probable to appear in future. A prisoner who might skip the area to evade trial is a flight risk. Facts related to flight risk are:

  • the records of respondent appearing in front of Judge,
  • the offender’s relations with the society and
  • lastly the seriousness of the order.

Prisoners suffering lengthy reformatory terms are hardly allowed bail after conviction as they are more likely to leave town to circumvent the decision expecting them.

2.      Public Safety

Justices who have been asked to grant bail before judgment will be concerned about public safety. Factors relevant to public safety include:

  • the severeness of the offence, which involves if the respondent injured or frightened the sufferer, or the respondent used a weapon, also whether narcotics or liquor performed a part in the crime,
  • lastly, the appellant’s criminal records, including previous condemnations, the number of punishments and if they were fresh or old.

Finally, although the effect of a sentence on a judge’s reputation will never be mentioned during a sentencing hearing or in a statute covering post-conviction bail, judges will almost always consider the political consequences of their sentencing decisions. In most states, judges are elected and they naturally fear negative publicity if a defendant whom they’ve released after conviction goes on the run or commits a new crime.

Numerous states don’t permit bail if the sentence was for a severe or vicious offence, such as rape or death. Likewise, some states don’t grant bail after verdict if the trial court has inflicted a lengthy decision. For example, a court in Florida ruled that the respondent’s sentence of 14 years and seven months gave him a huge risk to leave the state, so he was denied bail after his conviction. (Sims v. Wainwright, 307 F. Supp. 116 (S.D. Fla. 1969).) 

The thinking for restraining bail in related situations is simple:

 Prisoners condemned of severe offences or suffering lengthy jail terms are more prone to skip city to evade what’s expecting them. On the other side, if the punishment is for a nearly lesser offence or the penalty is short, trial courts are more likely to set the accused free.

Post-Conviction bail for a DUI or DWI

It is likely to be tough for magistrates to choose whether to allow or reject bail application after driving under the influence (DUI) or Driving While Intoxicated (DWI) sentences. Numerous prisoners condemned of DUIs don’t even have a criminal history, stable occupations, family and other relevant relationships with the people. 

On the contrary, before-mentioned violations are supposed to be amongst the very severe driving crimes for genuine reason. 

Example of DUI bail after conviction

Shira was alleged with Driving Under the Influence. She has worked as a nurse at the regional hospital for 15 years. She resides with her young son in her own house. She doesn’t have any criminal records. The magistrate might be ready to permit bail to Shira while awaiting sentence as she had no criminal records she was unlikely to leave the state. The Court would direct her not to take liquor as a requirement of bail.

The Court might choose if Shira had previous orders for DUI, if she harmed someone by her driving while not in her senses because of liquor, or if her blood liquor level was extremely high. Under these situations, justice would have thought that the danger to public safety was huge to allow bail.

Drawbacks of Bail after conviction

 A bond after conviction is not always advantageous for an accused. The bench can inflate the cost of security after sentence, raising the economic load on the accused and his family members. The Judge can force limitations on what an offender can and cannot perform while out on bond. If the application has a little possibility to succeed, bail might draw out an annoying state and simply delay an immediate return to jail.

Deliberations at the time of Permitting Bail

At the point of concluding the petition asking bail, the Judge should study the apparent material accessible and should not go in the dignity of the matter by the recognition of proof. At the point of grant or refusal of bond regarding a non-bailable crime, the prime concern is the essence and seriousness of the crime. While adjudging bail petitions, the Judge shall take the issue of prima facie appeal decided for imparting bail. The bench cannot go in the subject of honesty and sincerity of the eyewitnesses put up by the accuser. The subject of honesty and sincerity of witnesses by the plaintiff can only be questioned during the proceedings. The Top Court in the case of State of Maharashtra vs. SitaramPopat Vital[2] has declared some factors that should be considered, before giving bail, 


i) The essence of charge and the seriousness of sentence in case of condemnation and the character of preserving testimony,

 ii) Conscious perception of interfering with the eyewitness or fear of danger to the victim,

 iii) Apparent satisfaction of the justice in aid of the charge.

Occasionally some disputes need examination for the Court to effectively conclude upon the bail request, like: (i) whether there is or no sensible reason for considering that the defendant has committed the crime for which he is charged; (ii) the essence and seriousness of the allegation; (iii) the strictness of the sentence which might occur in a specific situation in a state of condemnation; (iv) the probability of the criminal fleeing, if set out on bond; (v) nature, intends, reputation and status of the accused; (vi) the probability of the crime being ongoing or recurred on the presumption that the arrested is liable for committing that crime previously; (vii) the possibility of the eyewitnesses being interfered with; (viii) a chance of the defendant to make his argument on credits. The Apex Court in the case of Ram GovindUpadhyay vs. Sudarshan Singh and Ors[3]. while studying different circumstances for allowance of bail has examined the situation where the defendant has previously held in jail and the hearing is not supposed to decide for some time, which can signalize as irrational, but bail doesn’t require to be allowed. The circumstances such as past conduct and performance of the arrested in the Court, the time of custody of the defendant and fitness, age and gender of the arrested also taken into consideration at the time of allowance of bail.

The Bench shall grant proper time to investigating officers to complete their inquiries. It is evenly important that the judges imply an exact balance within this condition and the evenly compelling point that a person’s freedom cannot be cut-short except if the events and incidents completely support it. Upon the accurate reading of Sec. 437 of CrPC, it is noticed that the legislative body has applied the words “legitimate grounds for considering” instead of “proof”. Hence, the Court has only to present as to whether the petition against the arrested is valid and whether there is prima facie proof to confirm the allegation.

Article 21 of the constitution is really of supreme significance as it cherishes the fundamental right to personal freedom, but in sync, a stability has to inflict within the right to personal liberty and the advantage of the community. No privilege can be accurate and right limitations can be put on them. The bar, at the point of choosing bail requests and after considering such circumstances into account, is at freedom to inflict fair limitations to be obeyed by the appellant.

Introduction of Conditions

The power of the Court to inflict limitations at the time of giving bail is provided under Sec. 437 of the Code of Criminal Procedure Act, 1973.

The Court may, while setting someone free, demand him to give his passport as declared in Hazarilal vs. Rameshwar Prasad[4]. The accused need not be constrained to any requirement which is not prudent and is unjust. The Judge has to assure that the restriction inflicted on the defendant follows with the acceptation and terms of the sections and not difficult. 

The Judge has the option to force some limitations, on the individual arrested or speculated of the commitment of a crime condemned with detention under Sec.437(3), such as:

(a) that individual must fulfil the following requirements of the bail performed

(b) that individual should not do a crime alike to the crime for which he is arrested or speculated of the performance, and

(c) lastly, that individual should nor directly or indirectly cause any temptation, warning or guarantee to any individual informed with the data of the dispute to prevent him from revealing such details to the Judge or any policemen or interfere with the evidence. 

The Judge may likewise force, in the matters of fairness, such other limitations as he views essential. To initiate the law seriously and to observe that the accused on bond doesn’t tamper with the inquiries or threaten eyewitnesses, sub-sec. (3) has been changed to define some requirements, which provide a mandatory impact. 

The limitations as so inflicted at the time of giving bail must be fair.

 The Apex Court in the case of Sheikh Ayub vs. the State of M.P[5]at the time of deciding upon the sensibility of the inflicted bond requirements held “Via the challenged judgement, the defendant was conferred bond and ordered to deposit 2 lakh 50,000 which is declared to be the value reserved by the defendant. Additionally a condition for a providing bail bond for Rs. 50,000/-. In the facts of the dispute, command to put Rs. 2 lakh 50,000 was not guaranteed, as a component of the conditions for conferring bond.” The charge is on the Judge to analyse the complete facts and situations of the dispute before inflicting the requirements for permitting the bail. 

The Supreme Court in the matter of Ramathal and Ors. vs. Inspector of Police and Anr[6]. decided that the High Court of Punjab and Haryana have not paid attention to the complete details of the incident in an appropriate aspect while adjudging, as the limitations forced by the High Court ordering the appellant to put an amount of Rs. 32,00,000/- (Thirty Two Lacs) was irrational and serious and was impossible for the defendant, therefore the dispute was sent back to the High Court.


The prime purpose of the terms giving the bail should not be to restrain and seize an arrested person but to assure his presence at the time of proceedings and to be confident if the wrongdoer is held liable, he is ready to bear the outcome of the crime he has done, in respect of sentence under the law.

 It would be wrong and immoral to deprive the defendant of his freedom while awaiting the criminal proceeding against him. Releasing on security after considering suitable facts and the imposing sound limitations is vital not just to the respondent, and his family who might be dependent upon him but also to the community at large. Therefore the Court is bound by law to examine the facts and conditions commanding in the dispute and strike a stability between considerations and imposition of the fair conditions and then give the proper judgement.

Possible Questions

  1. What conditions should be considered while granting a bail?
  2. Who is liable for bail?
  3. Drawbacks of bail after conviction?
  4. What is a DUI bail after conviction?


  1. Bail While Pursuing an Appeal, available at:
  2. BAIL PENDING APPEAL, available at:
  3. Bail While Awaiting Appeal, available at:
  4. Bail: Considerations And Imposition Of Conditions, available at:


[2]State of Maharashtra vs. SitaramPopat Vital(2004) SCC 921, (2004) 3SCR 696

[3]Ram GovindUpadhyay vs. Sudarshan Singh and Ors(2002), AIR 2002 SC 1475

[4]Hazarilal vs. Rameshwar Prasad1972 AIR 484, 1972 SCR (2) 666

[5]Sheikh Ayub vs. the State of M.P(2004) 13 SCC 457

[6]Ramathal and Ors. vs. Inspector of Police and Anr(2009) 12 SCC 721

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