By Abhinav Gaur
Published on: June 9, 2022 at 18:15 IST
Bail is an essential component of any criminal justice system that ensures the Accused’s right to a fair trial. The practice of providing bail arose from the need to protect the fundamental right to liberty which is enshrined in the Indian Constitution under Article 21, stating that
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The fundamental goal of arrest is to ensure that the accused appears in Court for the administration of justice during a criminal proceeding. However, if the person’s presence is assured for the court trial without jail, violating their liberty may be unfair and unjust. As a result, bail is frequently given as conditional liberty to the accused.
What is Bail?
The definition of bail in the legal lexicon is “The security for the appearance of the accused person on which he is released pending trial or investigation.” Bail is intended to “Procure the release of a person from legal custody by undertaking that he/she will appear at the time and place designated and submit himself/herself to the jurisdiction and judgement of the court.”.
Although the Criminal Procedure Code, 1973, does not define bail, the terms bailable offence and non-bailable offence are defined in section 2(a) Cr.P.C. as follows: “Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence.”
Furthermore, sections 436 to 450 outline the procedures for granting bail and bonds in criminal proceedings. The amount of security the accused must pay to obtain his release is not specified in the Cr.P.C. As a result, the Court has the authority to impose a monetary limit on the bond.
What is a Bail Bond?
Generally, a bail bond is a document in which a prisoner and one or more sureties ensure that he would attend the hearing on the accusations against him if he is released on bail.
The judges of the Court always establish the cost for the bail bond; it may be only 10% -20%, which is to be paid at the time of bail, or the Court may require the entire bond payment.
The nature of the offence determines bail in terms of harm to others, the suspect’s criminal record, the threat that the suspect’s release would cause to the community, and the suspect’s ties to the community, family, and work.
Types of Bail
In India, there are three sorts of bail:
After a person commits a cognisable non-bailable offence (Offences where the accused can arrest without an arrest warrant), the police can take the accused into custody. He must be sent to jail once the custody time expires. The accused has the right to be freed from custody under sections 437 and 439 of the Criminal Procedure Code. So, a regular bail is the release of an accused from jail to secure his appearance at trial.
Interim bail is provided temporarily either while an application is pending or while an anticipatory or regular bail application is pending before the Court. This kind of bail is always conditional and can be prolonged; however, if the time period expires before the accused has been granted anticipatory or regular bail and fails to pay the sum necessary to continue the bail, he forfeits his right to freedom and will be brought into the jail.
The term “anticipatory bail” is not defined in the Cr.P.C. However, in Balchand Jain v. State of M.P., the Supreme Court defined anticipatory bail as “bail in anticipation of arrest.”
The statement is a misnomer since it implies that the Court may issue bail in anticipation of an arrest. When a competent court gives “anticipatory bail,” it orders that the individual be freed on bail in case of an arrest.
Conditions for Bail
Bails and bonds are dealt with under Chapter XXXIII (S.436-450) of the Code of Criminal Procedure. Before granting bail, a few conditions and circumstances must be kept in mind. Those are discussed under the following headings:
Section 436 of the Criminal Procedure Code is a mandatory statute, and the Court or the police have no discretion in granting bail. Any accused individual detained for a bailable offence and willing to offer bail for the same must be freed. The only discretion left with the police is to release the accused either on a personal bond or with sureties.
If the accused cannot provide bail, the police officer must present the accused to the Magistrate within 24 hours after arrest, as required by section 57 of the Cr.P.C. When a person charged with a crime appears before a Magistrate and agrees to provide bail, the Magistrate must release the accused person.
The only discretion available is to release the accused person on a personal bond or a bond with sureties. Even for the sake of assisting the investigation, the Magistrate cannot order the imprisonment of someone willing to provide bail with or without sureties.
The Supreme Court held in Rasiklal v. Kishore s/o Khanchand Wadhwani that the right to bail for bailable offences is absolute and indefensible because of the words of s. 436 Cr. P.C. no discretion is available to the Magistrate and the Court, and the section is mandatory.
The person accused of an offence is bound to be released as soon as bail is provided. It went on to say that in circumstances when a person is charged with a bailable offence, the complainant or the public prosecutor does not need to be heard.
Reading s. 436 Cr. P.C., it is evident that the section applies to everyone except those accused of a non-bailable offence.
When a person is granted bail, the bail issuing authority must be convinced that:
- The accused looks innocent, implying that he did not commit the crime.
- A further investigation into the offence is necessary to determine if he has committed the offence.
- The crime is not serious, meaning it is not punished by death, life imprisonment, or a sentence of up to ten years in jail.
- Even if the offence is of a bailable character, sub-section (2) of Section 436 lays forth the criteria under which bail is possible. If a person fails to comply with the bail-conditions bonds of appearance, he may be denied bail on a later occasion in the same matter if arrested or brought before the Court.
Conditions for bail in the case of a non-bailable offence
A person accused of a nonbailable offence does not have the right to bail. The Magistrate’s rights to issue bail in non-bailable circumstances are enumerated in Section 437 of the Criminal Procedure Code.
It stipulates that magistrates have the authority to release such individuals on bond, subject to specific conditions. A person, if arrested without a warrant and is brought before a court other than the High Court or the Sessions Court, any Court has the authority to give grant bail under this clause.
The Supreme Court enumerated relevant factors that belie the decision on bail in State v. Captain Jagjit Singh.
The nature and seriousness of the offence, the character of the evidence, circumstances distinctive to the person accused of an offence, a reasonable possibility of the accused person’s presence not being secured at the trial, reasonable apprehension of witness tampering, the larger interests of the public or the State, and so on, which a judge must take into account while granting bail for a non-bailable offence.
Furthermore, in Gurcharan Singh v. State (Delhi Administration), the Supreme Court reiterated the findings in Jagjit Singh’s case (supra), holding that the nature and gravity of the circumstances in which the accused committed the offence; the position and status of the accused person with the victim and witnesses; and the likelihood of the accused person committing the offence again are the overriding considerations in granting bail in both sections 437(1) and 439(1) Cr. P.C. are the nature and gravity of the circumstances in which the offence is committed; the position and status of the accused person concerning the victim and witnesses; the likelihood of the person charged with an offence fleeing justice; the possibility of jeopardising one’s own life; the possibility of recurrence of the offence; the probability of the accused person of tampering with witnesses; the history of the case etc. which cannot be set out exclusively are the factors which are to be kept in mid while considering a bail.
The Supreme Court concluded in Pappu Yadav v. Central Bureau of Investigation that the issue of bail depends on the factual matrix of the case and that there is no strict formula for granting bail.
If the accused is a woman or a child, the proof of the crime is insufficient and additional investigation is required, the FIR has not been filed immediately, and the accused is very ill or infirm, the Court may grant bail.
Suppose the accused is suspected of committing, abating, conspiring, or attempting to commit a felony punishable by seven years or more in jail. In that case, he will be released on bail with the following conditions:
- Attendance as required by the bail bond;
- the commitment not to conduct a similar crime;
- And the promise not to make any direct or indirect incentive, threat, or promise to anybody who knows the facts of the case.
On the other hand, the Court may refuse to grant bail if it has reasonable reasons to suspect the defendant is guilty of a crime punishable by death or life imprisonment. If the offence is cognisable and the individual has previously been convicted of an offence punishable by death or imprisonment for seven years or more or convicted two or more times of an offence punishable by imprisonment for three years or more, the Court may reject bail.
The simple fact that the accused’s examination requires the presence of a witness will not be a sufficient basis to deny bail. The Public Prosecutor shall be allowed to hear and object to bail before it is granted for offences punished by death or imprisonment for seven years or more.
Conditions of granting an Anticipatory Bail
In the Balchand case, the Supreme Court of India stated that section 438 of the Cr.P.C. is an extraordinary remedy that the authorities can exercise in unique or exceptional instances. However, in the Gurbaksh Singh Sibbia case, the Supreme Court highlighted that while Section 438 of the Cr. P.C. is unusual in nature; such authority should be exercised intelligently and with proper care, and the judicious employment of judicial power shields Section 438 of the Cr. P.C. from intemperate usage.
Thus, in the Balchand Jain, the Court observed that the power of granting anticipatory bail is extraordinary in nature, and the Authorities can exercise such kind power only in exceptional cases where it appears that the accused has been falsely implicated or has been implicated in frivolous cases, or there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail.
The Court went on to say that, in addition to the criteria specified in s. 437 Cr.P.C., the petitioner must make out a specific case to get anticipatory bail.
Only a High Court or a Court of Sessions can award anticipatory bail.
The primary goal of the bail provisions should not be to detain and arrest an accused person but to ensure his appearance at the time of trial and to ensure that if the accused is found guilty, he is available to suffer the consequences of the offence as committed, in terms of punishment in accordance with the law.
It would be unreasonable and unfair to deprive the alleged accused of his liberty while the criminal process against him is pending.
The release on bail based on appropriate considerations and the imposition of reasonable conditions is significant not only to the accused and his family members who may be dependent on him but also to society as a whole; thus, the Court is duty-bound to consider the facts and circumstances of the case, strike a balance between considerations and the imposition of reasonable conditions, and then pass the appropriate order.
About the Author
The Article is written by Abhinav Gour, a student pursuing BBA LLB(Hons.) from Symbiosis Law School, Pune. The author is in his first year and has a keen interest in legal writing and researching.
Law lexicon by Ramanth Iyer, (3rd ed) ↑
Black’s Law Dictionary 177 (4th ed.) ↑
Balchand Jain v. State of Madhya Pradesh, 1977 AIR 366 ↑
The State v. Captain Jagjit Singh,  (3) SCR ↑
Gurcharan Singh v. State (Delhi Administration) 1978 AIR 179 ↑
Pappu, Yadav & Ant [JT 2004 (3) SC 442] ↑
Shri Gurbaksh Singh Sibbia v. State of Punjab, 1980 (2) SCC 565 ↑
Also Read- Major Grounds for Rejection of Bail