Bail under criminal law is a fundamental aspect of Indian criminal jurisprudence and is a well-established principle in judicial systems worldwide. Essentially, bail refers to the release of a person awaiting trial or appeal from prison, upon the deposit of security to ensure their appearance before legal authority at the required time.
“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”.
– Justice V.R. Krishna Iyer
The court with jurisdiction over the prisoner sets the monetary value of the security, commonly referred to as the bail or bail bond. The security may take the form of cash, property papers, or the bond of private individuals.
If the person released on bail fails to surrender themselves at the appointed time, the security is forfeited. Courts have the discretion to grant or deny bail in the case of individuals under criminal arrest. The CrPC outlines the rules and procedures for bail, including who is eligible, what factors are considered, and how to apply.
Under the CrPC, bail is available to anyone who has been arrested and charged with a crime, with a few exceptions.
“No person shall be deprived of his life or personal liberty except according to the procedure established by Law”.
The court will consider several factors when deciding whether to grant bail, including the severity of the crime, the defendant’s criminal history, and the likelihood that they will flee or interfere with the trial. In some cases, the court may require the defendant to provide a surety or a bond as a guarantee that they will return for their trial.
- 1 Understanding Bail
- 2 Types of Bail Criminal Procedure Code
- 3 Factors Affecting Grant of Bail
- 4 Bailable and Non-Bailable Offences
- 5 Case Laws
- 6 Conclusion
Bail is the temporary release of a person who has been accused of a crime, in exchange for a sum of money that is held as a guarantee that the accused will appear in court for all future proceedings related to the case.
The discretionary power of the court to admit to bail is not arbitrary, but is judicial, and is governed by established principles.
In 2011, The Hon’ble apex court in Sanjay Chandra vs CBI 2012 opined that:
“The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required”
Bail is granted under the Criminal Procedure Code (CrPC) of India, which provides for different types of bail, including anticipatory bail, regular bail, and default bail. Bail can be granted for both bailable and non-bailable offences.
Section 436 of the Code of Criminal Procedure deals with provisions of bail in bailable offences. Under this section, bail is the right of a person, who has been accused for commission of offence, which is bailable in nature. This provision casts a mandatory duty on police officials as well as on the Court to release the accused on bail if the offence alleged against such person is bailable in nature.
Section 436 reads as follows:
In what cases bail to be taken.
(1) When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Provided further that nothing in this section shall be deemed to affect the provisions of sub- section (3) of section 116 or section 446A 1 .
(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail- bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.
Under section 437 When a person is accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but such person shall not be so released,
a] if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
b] if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a nonbailable and cognizable offence
c] He may be released if under the age of sixteen years or is a woman or is sick or infirm
d] He may be released if it is satisfied that it is just and proper so to do for any other special reason.
Section 438 of Cr.P.C. deals with anticipatory bail. The anticipatory bail is nothing but a bail in the event of arrest, when any person has an apprehension or reason to believe that he may be arrested of an accusation of having committed a non-bailable offence then he may apply to the High Court or Court of Sessions for direction that in the event of arrest he shall be released on bail.
Section 438 reads as follows:
438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1).
Therefore, the said powers are exclusively vested with the Court of Sessions and High Courts. For considering the application for anticipatory bail the prerequisite condition is that the offence must be non-bailable.
There must be a sufficient reason to believe that the applicant may be arrested in said accusation. The Sessions Court or the Hon’ble High Court considering the nature and gravity of the accusation, the antecedent of the applicant, the possibility to flee from justice and whether the accusation has been made with the object of injury or humiliating the applicant by having him arrested may either reject the application or issue an interim order for the grant of anticipatory bail.
Types of Bail Criminal Procedure Code
If a person has reason to believe that they may be arrested for a non-bailable offence, they can apply for anticipatory bail by seeking a direction from the High Court or the Court of Session. This direction allows the person to be released on bail in the event of arrest. The court will consider certain factors before granting anticipatory bail.
If the High Court or Court of Session grants interim bail to an applicant, the court will immediately issue a show cause notice, along with a copy of the order, to the Public Prosecutor and the Superintendent of Police. The purpose of this notice is to provide the Public Prosecutor with a reasonable opportunity to be heard when the application is finally heard by the court.
To obtain anticipatory bail, the High Court or Court of Session may impose certain conditions based on the facts of the particular case.
These conditions may include:
- making oneself available for interrogation by the police officer when required,
- refraining from inducing, threatening, or promising any person acquainted with the facts of the case to dissuade them from disclosing such facts to the court or police officer, and
- obtaining the court’s previous permission before leaving India
In Gurbaksh Singh Sibbia v. State of Punjab, the Hon’ble Supreme Court held that “The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest”.
No Regular Bail shall be granted When Interim Anticipatory Bail Is Granted By Higher Courts And Matter Is Pending
Interim bail is provided to an accused person who is unable to obtain regular bail due to various reasons such as a delay in the bail hearing, unavailability of the judge, or the complexity of the case.
Interim Bail is a temporary release of an accused person from custody before the conclusion of their trial. It is granted by a court or authorized official before a formal bail hearing takes place.
The accused person is required to appear in court after a limited period their case is reviewed. The conditions of the interim bail may vary, but they typically include restrictions on the accused person’s movements, such as reporting to the police station regularly.
Interim Bail is an important legal concept in many jurisdictions because it balances the rights of the accused person to their freedom against the need to ensure that they appear in court for their trial
Regular bail is a type of bail that is granted to an accused who has been arrested and is in custody. This type of bail is granted after the accused has applied for bail in court.
Regular bail is the release of an accused person from custody by a court, pending their trial or until their case is concluded. Regular bail can be granted by a court after considering various factors such as the nature of the crime, the severity of the charges, the accused person’s criminal record, and the likelihood of them fleeing or interfering with the investigation.
To obtain regular bail, the accused person or their lawyer usually has to file a formal application with the court, requesting their release on bail. The court may then grant bail on certain conditions, such as requiring the accused person to surrender their passport, report to the police station regularly, or provide a surety or a guarantor who can ensure their appearance in court.
The grant of regular bail ensures that the accused person can continue with their daily life while their case is ongoing, and also enables them to participate more effectively in their defense. It is important to note that regular bail is not a guarantee of innocence, and the accused person is still required to attend trial and defend themselves against the charges.
The terms and conditions of regular bail may vary depending on the jurisdiction and the circumstances of the case and may be reviewed or modified by the court at any time.
Besides Chapter XXXIII Section 436 to 439, another provision, which deals with the concept of bail is Section 167 of the Code of Criminal Procedure, which is generally termed as “Default Bail”
If the investigation is not completed within a certain period of time, the accused is entitled to default bail.
Section 167 Criminal Procedure Code reads as follows:
167. Procedure when investigation cannot be completed in twenty four hours.
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;].
Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.]
(2A) Notwithstanding anything contained in sub- section (1) or sub- section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub- section,
Factors Affecting Grant of Bail
When it comes to granting bail, there are several factors that come into play. These factors can determine whether or not an accused person is eligible for bail. Here are some of the most influential factors:
Gravity of Crime
The gravity of the crime is one of the most important factors when it comes to granting bail. If the crime is considered to be serious, such as murder or terrorism, then the chances of getting bail are slim. On the other hand, if the crime is less severe, such as theft or fraud, then the chances of getting bail are higher.
Role of Accused
The role of the accused is another factor that is taken into consideration when granting bail. If the accused is considered to be a flight risk, then the chances of getting bail are lower. The same goes for those who are considered to be a danger to society. However, if the accused has a stable job, a family, and strong ties to the community, then the chances of getting bail are higher.
Apart from the gravity of the crime and the role of the accused, there are other factors that come into play when granting bail. other factors such as the investigation agency and the judiciary can all influence the decision to grant bail.
Bailable and Non-Bailable Offences
When it comes to granting bail to an accused person, the Criminal Procedure Code (CrPC) distinguishes between bailable and non-bailable offences. A bailable offence is one where the accused person has the right to be released on bail, while a non-bailable offence is one where the grant of bail is at the discretion of the court.
Difference Between Bailable and Non-Bailable Offences
The difference between bailable and non-bailable offences lies in the severity of the offence. Bailable offences are generally less serious than non-bailable offences. Bailable offences are those where the maximum sentence is less than three years or where the offence is listed as bailable in the First Schedule of the CrPC or any other law.
On the other hand, non-bailable offences are those where the maximum sentence is more than three years or where the offence is not listed as bailable in the First Schedule of the CrPC or any other law. In non-bailable offences, the accused person has to apply to the court for bail, and the court has the discretion to grant or deny bail based on the facts and circumstances of the case.
Cancellation of Bail
If a person has been granted bail, it is important to remember that it can be cancelled under certain circumstances. The Code of Criminal Procedure (CrPC) provides clear provisions for the cancellation of bail and taking the accused back into custody.
According to Section 437(5) of the CrPC, any court that has released a person on bail under sub-section (1) or sub-section (2) of Section 437 may cancel the bail if:
- The accused has misused the bail by engaging in criminal activities or tampering with evidence
- The accused has violated any of the conditions of bail
- The bail was granted due to false information provided by the accused or the surety
- The bail was granted due to a mistake of fact or law
In case of cancellation of bail, the accused can be taken back into custody and may have to spend the remainder of their trial period in jail.
It is also important to note that the surety who has provided security for the accused’s bail can also face consequences if the bail is cancelled. The surety may be required to pay the bail amount or may even face imprisonment in case of non-payment.
Therefore, it is crucial to abide by the conditions of bail and avoid any activities that may lead to the cancellation of bail. If you are unable to comply with the conditions or have any doubts, it is advisable to consult with your lawyer and take the necessary steps to avoid the cancellation of bail.
When it comes to bail under the Criminal Procedure Code, there have been several landmark judgments that have shaped the way bail is granted in India. Here are a few important case laws that you should be aware of:
Gudikanti Narasimhulu vs. Public Prosecutor, HC Andhra Pradesh (1977)
In this case, the Supreme Court held that the grant of bail is not only dependent on the nature of the offence but also on factors such as the character, behaviour, and standing of the accused, the nature of the evidence, the likelihood of the accused absconding or tampering with evidence, and the possibility of the accused interfering with witnesses.
Sanjay Chandra vs. CBI (2012)
In this case, the Supreme Court held that the power to grant bail is not absolute and must be exercised judiciously and on reasonable grounds. The court also held that while considering a bail application, the court must take into account the seriousness of the offence, the nature of the evidence, the likelihood of the accused absconding or tampering with evidence, and the possibility of the accused interfering with witnesses.
Siddharam Satlingappa Mhetre vs. State of Maharashtra (2011)
In this case, the Supreme Court held that while granting bail, the court must balance the interests of the accused, the victim, and society at large. The court also held that the grant of bail cannot be denied merely on the ground that the offence is serious or that the punishment is severe.
State of Rajasthan vs. Balchand (1977)
In this case, the Supreme Court held that the grant of bail is not dependent on the existence of exceptional circumstances but on the facts and circumstances of each case. The court also held that the grant of bail is not a matter of right but a matter of discretion.
The basic rule is bail, not jail, except-where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. When considering the question of bail, the gravity of the offence involved and the heinousness of the crime which are likely to induce the petitioner to avoid the course of justice must weigh with the court.
These are just a few of the important case laws related to bail under the Criminal Procedure Code. It is important to keep in mind that each case is unique and must be considered on its own merits.
In conclusion, understanding the provisions of bail and bonds under the Criminal Procedure Code (CrPC) is crucial for anyone involved in the criminal justice system. Whether you are an offender, a lawyer, or a law student pursuing an LLB degree, it is essential to know the legal framework governing bail in India.
The following factors are considered for the grant of bail:
- The gravity of the charge
- The nature of the accusation
- The health, age, and sex of the accused
- The length of the trial
- The evidence in support of the conviction
- The possibility of witnesses being tampered with
- The nature and circumstances in which the offence is committed
Personal liberty is of utmost importance in our constitutional system, recognized under Article 21. Deprivation of personal liberty must be based on serious considerations relevant to the welfare objectives of society, as specified in the Constitution.
While granting bail, the court must also consider the socio-economic plight of the accused and adopt a compassionate attitude towards them. Proper scrutiny should be conducted to determine whether the accused has roots in the community that would deter them from fleeing from the court.