This article is written by Shubhangi Upmanya, pursuing BBA.LLB. from Vivekananda Institute of Professional Studies, Indraprastha University. In this article, she has discussed the provisions related to bail.

Introduction 

India witnesses a lot of crimes on a daily basis and the police many times are successful in tracing the criminals who they believe did the crime. The trial starts after some weeks or months from their conviction. The convicted criminals may at times, not be guilty and still be required to face jail time. The only way out of this is to get a bail.

The concept of bail was only prevalent in England during 399 BC. Its first instance was when Plato tried to procure a bond in order to release Socrates. Getting inspired from that, India also, later on, introduced this concept.

Well, if you get a call and learn that your client is jailed, then let’s see how to get him out of it.

The basic concept of bail

The term ‘bail’ means a kind of security or bond which is given to release a person from prison. It is a pro tem release of a criminal before his trial begins. The term ’bail’ is not defined anywhere in the Criminal Procedure Code, 1973, however, the terms ‘bailable offense’ and ’non-bailable offense’ are defined in Section 2(a) of Cr.P.C.

Evolution of the concept

As mentioned earlier, the concept was first introduced in England. The judges in England used to travel from place to place to hear the cases which took place from session to session. During this, the prisoners would face a hard time because of the unhygienic prison conditions. So the system of bail was introduced to release the prisoners awaiting trial. 

Later on, the Charter of Rights, the Magna Carta was introduced in the year 1215, which gave the right to the citizens, which stated that a man can not be convicted until he has faced the trial. The offenses were divided into bailable and non-bailable, back in 1275 by the statute of Westminster.

The Habeas Corpus Act came in the year 1679, according to which the magistrate can release the prisoners by taking some sort of surety. The English Bill of Rights introduced in the year 1689 provided a shield against the excessively high amount of bail. Currently, the Bail Act of 1976 is been followed in England.

Talking about the United States, the Bill of Rights was subsumed in its Constitution in the year 1791. It guaranteed all the provisions related to bail.

In India, the provisions regarding bail are incorporated in the Criminal Procedural Code,1973.

The Sections 436 to 450 deals with the grant the bail and bonds, in cases of criminal nature.

Let’s look at these provisions in depth.

In which cases can you get your client, bail?

Section 436

Section 436 of CrPC states that any person who is detained by a police officer, who doesn’t have a warrant or that person is prepared in the custody of the police officer before the court has granted him bail, shall be released on bail through a bond without any kind of sureties.

If the person has failed to follow the bail-bond then he can be refused bail. In case, the person appears in the court, such refusal will be subject to the court and it can call that person and impose penalty given under Section 446 of Cr.P.C.

Types of bail

Generally, there are three types of bail. Let’s have a look at them.

Regular bail

When a person has been arrested and is kept in custody, then the person can be released on a regular bail under Section 437 and Section 439 of the Cr.P.C.

Section 437

It states that, if any person is detained for the commission of a non-bailable offense, without a  warrant by a police officer, or when there are reasons to believe that there are not sufficient grounds to prove that the person has committed any non-bailable offense, then he can be released. This has to be followed in case he appears in any other court other than the Court of Sessions or the High Court.

Even so, this person can not be granted bail if there are reasons to believe that he is guilty of any offense punishable with a death sentence or life imprisonment or he has earlier been convicted for an offense which was punished with punishments of the same nature.

Section 439

It gives special powers to the High Court and the Court of Sessions regarding the same.

It enables these courts to release the people on bail for the offenses specified in Section 437(3) of CrPC. The court can impose any condition which it thinks is necessary.

It further provides that any condition which the Magistrate imposes can be set aside if the High Court has granted bail after giving notice to the public prosecutor. The bail, in this case, should be provided in case the offense can be tried exclusively by the Court of Sessions and is punishable with life imprisonment.

Under both of these Sections, the courts can again direct the arrest of that person.

Interim bail

Before the procedure for granting a regular bail or anticipatory bail, interim bail is provided. It is given for a temporary period. The reason behind this is that the granting of bail by the High Court or the Court of Session requires documents to be sent by the lower courts, which takes time. So, for the time being, the provision of interim bail is provided.

The Interim bail can be extended and if its period expires then the person to whom it is granted has to be put in jail again.

Anticipatory bail

Section 438 of the Criminal Procedure Code, provides the direction for a person apprehending arrest for any reason to believe.

It provides that any person who anticipates that he can be arrested in pursuance of any accusation of committing a non-bailable crime can apply for the grant of anticipatory bail. Application has to be made to the High Court or the Court of Sessions.

According to this Section if a person is released then there are some conditions that will follow-

• The person has to be present during the investigation whenever required,
• The person can not induce any person to disable him to enclose the facts against him during the proceedings,
• The person shall not leave India without the prior permission of the court.

It was further provided that if any person is arrested by a police officer without a warrant then he can be given bail.

Circumstances under which bail is given by police

When the arrest is made without a warrant

Section 43 of the Cr.P.C. provides for the arrest of any accused by a private person. The private person after the arrest should bring the convicted person to the police station or hand him over to the police officer as soon as possible. The police will if it thinks that the convicted person should be released, release him.

Section 56 of the Cr.P.C. enables the police officer to bail that person out under the provision contained in this Section.

Section 169 of Cr.P.C. state that the bail can only be set when the investigation is made. Until then this Section does not provide bail. Bail can be given by the officer-in-charge of the police station or the police officer who is investigating.

Section 170 of Cr.P.C. confers authority to give bail, in the officer-in-charge of the police station in case the person is accused of committing a non-bailable offense.

When the arrest is made with the issuance of the warrant

Section 73  of Cr.P.C. states that if the court is issuing the warrant under which it is specified that if the person executes a bond in which he has provided sureties for appearing before the court when the court specifies, then the police officer to whom the warrant is issued will be allowed to give bail to the person.

According to Section 81 of Cr.P.C. and Section 82 of Cr.P.C., it is specified that if the arrest is made in the district, the police officer other than District Superintendent of Police or the Commissioner of Police can release the accused from custody, but in case the arrest is made out of such district then the District Superintendent of Police or the Commissioner of Police in the area of arrest can release the convicted.

Theories behind the provision of bail

Well, there are some theories that are believed to take place in pursuance of granting bail. Let’s have a look at some.

• Sometimes the innocents in prison are awaiting trial while being imprisoned all that time, which should not happen.
• Internment without trial violates the basic rule of law. 
• Detention until not proven guilty is violative of Article 21 as it hampers personal liberty and life.
• The detention proves to be expensive.
• It may cause lots of financial suffering on the part of the family of the accused.
• The person who is incarcerated will get less opportunity to prepare for his case whereas the person who will be bailed out can present his defense in a proper way.

Process of bail

When a person is accused of a crime, the first step the police take is getting him booked. The police gather his personal information such as date of birth, address, etc and then do a little investigation into his personal history, check on his previous criminal records, if any.

The police also check if he is intoxicated while the charge sheet is being prepared.

Bail application

When the person is convicted of a crime, he has a right to apply for bail. Applying for bail depends upon the juncture at which the case is. To give you an illustration, if the manager of an office apprehends that he can be booked for harassment, alleged by an employee, who is a woman in his office, then, in this case, he can file an anticipatory bail application.

If the person is arrested, hitherto, the first thing he will do is to call you, his criminal defense attorney and apply for bail. Now, we know there are two types of offenses, bailable and non-bailable. In the case of a bailable offense, the accused has to file an application by filing the Form-45 which is provided in the second schedule. This has to be filed in the court where the case proceedings are to be heard. The court has to approve the bail.  In case of non-bailable offense, the suspect has to fill up the same form and file it in the court where his case is to be presented, the only change is that here the court has the discretion to grant bail.

Furthermore, every bail application should stand as distinct, as every case has different scenes and many uncommon facts.

Bail on Appeal

When a person is already convicted and applies for appeal in the Higher Court, meanwhile he can apply for bail. There are many things that have been taken into consideration like what if the appeal will be granted by the Higher Court or if there was a grave mistake made on the part of the Lower Court in deciding the case, etc.

Bail hearing

The bail hearing is the process, wherein the judge hears all of the reasons to grant bail and then announces the decision, based on whether he is convinced to grant the bail or not. It is important to understand the motive of the hearing and choose who is representing the convict in the hearing. It is the main role that you, as an attorney, will have to play. Herein, all the evidence and the facts are presented before the court. And the attorney has to convince the judge so that he starts to believe that there is a likelihood that the accused should not be convicted after his trial and he is innocent. 

What all will the judge consider while hearing your case proceedings?

Well, he has to be sure before he gives you bail, so he will be more likely to consider the following factors-

• The character of the accused,
• Nature of the crime for which the accused has been convicted,
• His employment situation and financial conditions,
• His background history,
• Whether the accused has been convicted before and if yes, then his regularity in the scheduled appearances by the judge,
• His family background and history,
• For how many years he has been a resident of the community, he is currently living in.

All the evidence regarding these factors is to be presented by the accused and his attorney.

However, the judge can grant bail or cancel it due to a lack of evidence or if he thinks the evidence is not proper. When the judge grants the bail then he imposes some conditions along with it. These conditions are most likely related to alcohol tests, constraints in travel, necessary conditions in employment, periodic meetings with an officer.

Determinants to grant bail

The judge while giving bail, takes into consideration all the factors governing the bail.

These factors can be-

 

• A threat to the community at large

 

The judge takes into consideration public safety by ensuring that the accused after bail is granted, does not do anything that hampers the safety of the general public.

To make certain of that, the judge looks for certain factors-

1. If the accused is charged with an offense of minor nature.
2. His level of involvement in the alleged crime.
3. His past records.
4. If he has been convicted for violence.
5. If he is of a violent nature.
6. If he has some medical condition which creates a certain disorder.
7. Whether he is small or weak for his age to commit that crime.

 

• Flight risk

 

In order to make certain that the suspect appears in court whenever the judge schedules the meeting, the judge has to take into account the risk of the suspect to flee.

To give you an illustration, Anuj was convicted for money-laundering, he was released on bail as he was a well established and a famous person. But soon after he ran away to another country where the police can not capture him. 

So, this is the flight risk which has to be taken care of and certain factors by which it can be made certain are-

1. For how long the convicted has been a part of the community?
2. How many family members live in that community?
3. Whether the suspect surrendered voluntarily or was chased down by the police?
4. Did the suspect cause any hindrance in the investigation?
5. Whether the suspect gave a comprehensive statement to the police?
6. The regularity of the suspect while attending his school or college which will show his regularity to attend the scheduled meeting.
7. Whether the suspect let the investigation go in a convenient manner?

Some other factors are necessary to consider such as the trial period of the convict, substance abuse and drug history of the convict. 

The defense attorney along with the suspect has to provide the evidence necessary for the verification of the factors stated above, which the judge will take into account while making the judgment regarding giving the bail or not.

Setting the bail amount

The judge announces an amount to be paid by the accused when he appears in court. The provision of the setting of the amount is in order to ensure that the suspect appears in court at the time scheduled. In many jurisdictions, there is a provision of the bail schedule which provides for a predetermined amount for different criminal acts. To give you an example, assume, the bail amount set for robbery is Rs. 1000 whereas the bail amount set for an act of manslaughter is Rs. 10000. The initial amount set can be reset or altered, that is it can be increased or decreased in conformance with the circumstances. It is done because the initial amount is set in accordance with the first appearance of the convict in jail.

The factors that impact the setting of the bail amount are-

• The gravity of the crime;
• Accused previous criminal records;
• Employment status of the accused;
• The accused bond with his relatives;
• His roots in the community.

Bail Schedule

The accused can instantly get the bail even before going to the court, which is in the police station itself.

The police stations, generally have a posted bail schedule for determining the amount in accordance with the crime committed. The crimes in the posted bail schedule are ones which are committed generally. Hence, the accused after being booked can get immediate bail by paying the amount mentioned in the posted bail schedule. But to bring it to notice, the amount specified for the respective crimes is not flexible, that is if someone is wanting to pay an amount less than the amount specified then the police station can not lessen it and the accused has to go to the court for the same.

Bail posted through mathematical methods

Nowadays, some courts have started to set bail by means of an algorithm. They follow mathematical methods to get the result of the exact amount of bail to be set. In this, the information of the accused is filled in which gives out a certain score as an output. This algorithm considers all the factors such as past criminal records, age, residence, etc. In order to ensure that the particular person accused will not fail to appear before the court or flee. It also checks for the probability of the accused to commit another crime.

Cancellation of bail

In certain cases, the judge will deny the bail completely. It can be denied at any stage of the case. The convicted person who applied for the bail will again have to go to jail. However, in a case where police have already provided the bail, the judge can not deny or cancel it. But in instances where the convict is likely to flee or when some other jurisdiction has placed a hold on the accused then, the judge will cancel the bail and let the other jurisdiction review and make the charges.

For example, Meera is residing in Australia and her family is in India. In Australia, she is caught for carrying a deadly weapon. Apart from this, she was also carrying a passport and Rs. 1 lac in cash. The judge while giving her the bail will look at her residential status, the passport which shows her chances to flee and her ties with the community in Australia. 

In order to negate this, she will have to provide the judge with the proof for each of the contentions.

Section 437(5) of the CrPC and 439(2) of the CrPC, gives authority to the court to cancel the bail.

Section 437 in clause 5 says that if the accused is released on bail under sub-clause 1 and 2 of the same Section then the court can cancel the bail if it thinks it is necessary.

Section 439 in clause 2 says that the High Court or the Court of Sessions has the authority to convict and commit the accused again into custody.  

Posting of bail

Let us discuss various options for posting the bail.

Cash bail

In this type of bail, the accused has to the full amount as specified, in cash. The court can sometimes take the amount via a credit card or a cheque.

Surety bond

It is generally known as a bail bond. this comes into play when the accused is not able to pay the entire amount of the bail. The relatives or friends of the accused, in this case, can contact a bail agent, who is also known as the bail bondsman. The bail bondsman is supported by an insurance company and he is made liable to pay the entire amount in case the accused fails to do so in the future. Now, what does this bail agent get? Well, he charges some sort of interest like 5 percent or 10 percent and asks the accused to pledge some kind of collateral or surety like his house or any kind of property.

Citation

Also known as release on cite-out, this process does not even require the suspect to get booked. In this, there is just a citation given which provides for the accused to appear in court from time to time. It will save time for the officers and allow them to chase down more serious offenders, as it saves them from following the procedure of booking the suspect and other procedure that is further carried out.

Release on Own Personal Recognizance

When there is a case, which is of minor nature, or the accused is involved in a very minute manner in it, then the person can be released on his own personal recognizance without giving the bail amount. In this case, the judge also has to take into account the flight risk and the risk of the accused to be a danger to society. The suspect only has to appear before the court from time to time, when specified.

Property bond

This is a method that provides that the accused instead of giving money as the bail amount can give legal authority to the court over his property. If the accused does not appear in the court at the time when the court calls, then the court can forfeit his property.

Bail provided in a bailable offenses

Section 436 of the CrP.C. deals with the provision of bail in case of a bailable offense. The person has a right, under this Section, to get bail and get out of jail after paying the bail amount with or without sureties. 

Some bailable offenses are-

• Causing hindrance in a peaceful assembly where people are worshiping,
• Causing hindrance in the work of a public servant,
• Bribing during election campaigns,
• Fabricating incorrect evidence, etc.

Bail provided in a non-bailable offenses

The person per se does not have any right to apply for bail in the case where he has committed a non-bailable offense. To give bail even in a non-bailable offense is the courts’ discretion.

This power of the court is given under Section 437 of the CrP.C. 

The judge may take into account the following conditions-

1. If the convict is a woman or a child,
2. If there is not enough evidence to believe that the accused is liable of the offense,
3. If the accused is mentally or physically sick.

Judicial trends

State of Rajasthan v. Balchand

In this case, the accused was convicted of killing the lover of his wife he saw them in objectionable circumstances. The trial court convicted him of the murder, later on, he was released by the High Court to which he had appealed. The High Court ruled out that it was under sudden provocation that he killed the man but later on an appeal was made to the Supreme Court by the State through special leave petition and he was again convicted. He then applied for bail on which Justice Krishna Iyer said that providing bail under these circumstances will go against the fair system of the administration of justice.

Manka Gandhi v. Union of India

In this case, Justice Krishna Iyer contended that there is no definition of the word ‘bail’ given in the Criminal Procedural Code. Justice PN Bhagwati also added that bail has to be provided in accordance with the economic condition of the accused as many accused who apply for bail are poor.

Hussainara Khatoon and others v. Home Sec, and the State of Bihar

In this case, a rule was laid down that if a man stays in jail for a period more than the period which he has to spend in jail after he is convicted for a crime, then he ought to be released.

Conclusion

It is important to doubt first and then prove but the presumption of innocence is also necessary. With this thought, the provision of granting bail was introduced. It has proven as a remedy to let the innocent man be saved from spending his time in jail before his trial and also allows him to enhance his case preparation while allowing the lawyer to create a good understanding of the case. Because of this, the attorney is able to get in touch with the family members of the accused and gather letters of support that help build the case. Still, the setting of the bail amount is not done accordingly. Measures should be taken to make certain that poor convicted people can give the bail amount as they can be innocent too. Also, the bail system should be enhanced when someone is convicted in the case of Driving under Influence(DUI) and Driving While intoxicated(DWI) as it is very ambiguous for the court to provide bail in such cases.

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