The article has been written by Ayush Verma, 2nd year student at RMLNLU, Lucknow. The article provides the descriptive understanding of bail with the help of various provisions and case laws.
Table of Contents
The term “bail” has not been defined under CrPC. It is a security given by the accused that he will appear before the court for answering the accusations that have been made against him and include personal bonds and bail bonds. An arrested person is trusted to his sureties upon their security that the said person would appear at the designated place and time, to the jurisdiction of the court. The sureties to whom the arrested person is delivered become the bailor as they are responsible for his presence when required. A person is bailed on the bond given by the sureties and the surety must have an authority to bail the arrested person.
Meaning of bail
Bail is derived from the old French word “ballier”, which means to give or deliver. According to the Cambridge Dictionary, bail is an amount of money that a person accused of a crime pays to a law court so that he can be released until his trial. The payment is a way of making certain that the person will be available to the court for trial. In simpler words, a sum of money given as a guarantee that a person will show up before the court for hearings.
Objective of bail
According to the legal principle of presumption of innocence, a person is innocent until proven guilty. So, the concept of bail is to acknowledge this principle that a person should not be put behind the bars unless his guilt is proved. Therefore, bail is granted to such a person where he is left free of the custody or imprisonment. However prima facie (at first sight), there is a presumption of guilt in the cases of criminal offence, therefore, the conditions are put on the bail that the person would have to appear in court on the fixed date and time when called for. The purpose of such appearance can be an appeal for revision, to plead guilty, or to give evidence etc. The provision also seeks to ensure that the personal liberty of the person granted under Article 21 of the Constitution must not be curtailed, until the person is found guilty.
Classification of offences
There are two types of offences under Section 2(a) of CrPC: bailable and non-bailable.
According to Section 2(a), an offence which is shown in the First Schedule of CrPC as bailable, or which is made bailable by any other law in force would be a bailable offence. First Schedule consists of two parts: the first part relates to offences under the Indian Penal Code and the second part deals with offences under other laws. The second part says that offences that are punishable for less than three years or with fine only are bailable offences. Some examples of it would be bribery or public nuisance etc. In this type of offence, bail can be claimed as a matter of right, as they are less severe.
According to Section 2(a), any offence which is not included in the First Schedule as a bailable offence is non-bailable offence. In the second part of the First Schedule, the offences that are punishable with death, imprisonment for life or imprisonment for more than seven years are defined as non-bailable offences. In this type of offence, a person cannot be bailed as a matter of right but can request the court to grant bail. The discretion is vested with the court to grant bail or not, subject to the conditions mentioned in Section 437.
Release on bail
Circumstances in which release on bail is important
There are certain circumstances when the release on bail is extremely important. Such circumstances are those where the accused person is:
- less than sixteen years old;
- sick or infirmed.
Cases other than those of non-bailable offence
According to Section 436, a person who is accused of an offence other than non-bailable offence, is arrested or detained without a warrant and is prepared to give bail, such person shall be released on bail. The bail in this case may be granted by the police officer having custody of the accused or by the court.
In the case of Rasik Lal v. Kishore, the Supreme Court held that in case of bailable offences, the right to get bail is absolute and if the person accused is prepared to give bail, the court or the police officer is bound to release him.
Procedure: A person needs to fill Form 45 given in the First Schedule and have to apply it to the court for getting bail.
If investigations are not completed within the prescribed number of days
In the case of Uday Mohanlal v. State of Maharashtra, the Supreme Court held if the investigation agency is not able to complete the investigation within the period prescribed in Section 167(2), the person accused is entitled to bail, if he is prepared to and furnishes the bail to the magistrate.
No reasonable grounds for believing the accused guilty of a non-bailable offence
Under Section 437(2), if at any stage it appears to the court or the officer that the person has not committed a non-bailable offence on reasonable grounds, and there are sufficient grounds for further enquiry, the accused shall be released on bail till such enquiry is pending, subject to the provisions of Section 446A. Such release by the court or police officer can be given on a bond of the person without sureties.
Trial not concluded within 60 days
According to Section 437(6), in a case triable by a magistrate, the person accused of a non-bailable offence is entitled to bail if his trial did not conclude within sixty days from the first date on which evidence was to be taken, and the person was in custody for the whole time.
After trial but before judgement
According to the Section 437(7), a person can be granted bail in case of a non-bailable offence, after the trial but before judgement, if the court finds reasonable grounds showing the innocence of the person, on the execution of bond for his appearance to hear the delivered judgement.
Section 389 lays down the rule for getting bail after conviction. It says that a person can be granted bail after conviction if the sentence awarded by the trial court is less than three years. Such bail can be granted even by the trial court by suspending his sentence, during the pendency of the appeal. However, if the sentence is more than three years, bail can be granted only by the appellate court.
Discretion in granting bail in cases of non-bailable offenses
The discretion to grant bail in non-bailable offences is vested with the court under Section 437 of CrPC.
Exceptions in granting bail
There are certain exceptions given in Section 437 in which bail cannot be granted to the accused person. These exceptions are:
- Where a person has been convicted of an offence that is punishable with death or imprisonment for life, or
- Where a person is a habitual offender and has been previously convicted of offences punishable with three years or more.
Requisite conditions to grant bail
Under Section 437(3), certain conditions are imposed by the court while granting bail where the accused is punished with imprisonment of more than seven years, or abetment, conspiracy, or attempt to commit any such offence:
- That such person shall act, according to the conditions of the bond.
- That such person shall not commit an offence similar to the one he is accused of.
- That such person shall induce any other person to not disclose the facts regarding the case, or tamper with the evidence.
- Other conditions may also be imposed in the interests of justice.
Powers of High Court or Court of Session
Section 439 talks about the powers of High Court or Court of Session in granting bail. They may coordinate:
- That an accused person in custody be discharged on bail, and if the offence is of the nature included in subsection 3 of Section 437, may enforce any condition that it considers fundamental for reasons given in the said sub-section.
- That any condition imposed by a magistrate be set aside or may modify them.
Also, according to Section 439(2), it may direct the person discharged on bail to be arrested and taken in custody.
Cancellation of bail
Section 437(5) provides that, any court which has discharged a person on bail as per subsection 1 and 2 of Section 437, if the court finds it necessary to do so, may direct that such person be arrested and taken in custody. It must be noted that the court which has given the bail may only cancel it, under this subsection. In a case where bail has been granted by a police officer, bail cannot be revoked by the court. In such a case, bail has to be revoked by invoking the powers of High Courts in Section 439.
The cancellation of bail under Section 439 does not require some pre-conditions. It’s just a discretionary power given to the High Court or Court of Session. The court, however, bases its cancellation on subsequent events that take place after the release of a person in bail. In the case of Surendra Singh v. State of Bihar, Patna HC laid down certain grounds on which bail may be cancelled:
- Where the accused is found to be tampering with the evidence either during investigation or trial.
- Where the accused commits a similar offence or some other heinous offence.
- Where the accused absconds and the trial gets delayed due to such act.
- Where the offence committed by the accused has caused severe law and order problems in the society.
- Where the High Court finds that lower court has wrongly granted the bail.
- Where the accused misuse the privilege of bail.
- Where the life of the person accused is in danger itself.
The provision of anticipatory bail was brought to prevent the gross misuse of powers of arrest. There were a lot of cases being filed in the court which led to innocent people being arrested without any fault. Therefore, this provision prevents such arrests. However, if a person is found guilty, the person may be arrested. So the whole idea of anticipatory bail is to prevent unreasonable arrest.
Anticipatory bail has not been defined under CrPC. It is a misnomer. Section 438 talks about the anticipatory bail. It is stated as “Direction for grant of bail to person apprehending arrest”. From its wording only, it can be inferred that the bail is given in anticipation of arrest. Here, bail is granted even before a person is arrested.
Jurisdiction of Courts
In Section 438, the words are clear that the person may ask for anticipatory bail from a High Court of a Court of Session. Therefore, the two courts have been given the power to grant anticipatory bail.
Reasonable apprehension of arrest for a non-bailable offence
A person having a reasonable apprehension that he might be arrested on accusation of non-bailable offence, may apply to the High Court or Court of Session to grant him bail. The bail can be granted by taking into account several factors given in Section 438:
- Nature and gravity of the accusation.
- History of the person, taking into account whether such person was previously convicted in respect of a cognizable offence.
- Possibility of the applicant to evade justice.
- Whether accusation was made with the intent of injuring or humiliating the applicant by having him arrested.
Wide discretion in granting anticipatory bail
There is a wide discretion vested with courts in granting anticipatory bail due to the presence of the term “may, it thinks fit” in Section 438. Such bail must be granted after taking into account the facts and circumstances of the case and by the imposition of conditions that the case may warrant.
There are certain conditions on which anticipatory bail is granted by the court. These conditions are given in Section 438(2) as:
- That the person shall be available to a police officer as and when required.
- That the person shall not induce any person for not disclosing the facts of the case.
- That the person shall not flee from India without the previous permission from the court.
- Conditions under subsection 3 of Section 437 may be imposed as if the bail were granted under the said section.
Reasons to believe
There must be a reason for a person to believe that he might be arrested for committing a non-bailable cognizable offence. In the case of Adri Dharan Das v. State of Bengal, the court held that the reason to believe must be on the reasonable ground and not the whims and fancies of the applicant.
No “blanket order” of anticipatory bail
No blanket order can be passed giving anticipatory bail to the applicant without looking into the offence he has committed. The applicant should be able to show specific accusations on which relief can be given to him. An order must not interfere with the rights of police to investigate the matter.
Interim order and notice to Public Prosecutor
An interim order under Section 438 can be passed without giving notice to the public prosecutor in urgency cases. But the notice should be issued to the Government advocate or the public prosecutor simultaneously. In such a case, the order of giving bail should be re-examined taking into concern the contentions of both the parties.
After the amendment of 2005 in the CrPC, it is mandatory to hear the public prosecutor before granting anticipatory bail.
No anticipatory bail after arrest
No anticipatory bail can be granted once a person is arrested. This provision is only available before an arrest. After an arrest has been made, a person then needs to apply under Section 437 or 439 to get bail but cannot apply under Section 438.
Cancellation of anticipatory bail
Section 439(2) relates to cancellation of the anticipatory bail. Though there is no specific provision under CrPC for cancelling an anticipatory bail, it can be implied that the court which has the power to grant such bail also has the powers to revoke that bail. The power to grant anticipatory bail shall not be abused in any manner. Courts have opined that the power to cancel such bail must be exercised to meet the ends of justice.
Powers of Appellate Court to grant bail
Under Section 389, if an appeal filed by the convicted person is pending, the Appellate Court may after recording the reason in writing, order that the sentence or order against the person be suspended, and if the person is in confinement, that person be released on bail or on his own bond. However if the if the person is sentences with death, imprisonment for life or imprisonment not less than ten years, give the opportunity to the public prosecutor to show cause against such release. The bail can only be granted by the Appellate Court where the accused person is:
- already on bail, and the sentence given to him is not more than three years imprisonment, or
- where the offence committed by him is a bailable one.
However, there must not be any special reasons for refusing such bail. Under this provision, the intention of the applicant to file for appeal is a sufficient reason for releasing him.
It must be noted that bail under this Section is for a limited period only and can only be granted to a convicted person.
Power of the courts of revision to grant bail
The High Court or the Court of Session in the exercise of its revisional powers under Section 397 can ask for examining the record of any proceeding by an inferior court to check its legality, correctness or propriety. While doing so, the courts may direct that the execution of the sentence or order be suspended, and where the accused is in confinement, that the person be released on bail or on his bond pending the examination of the record.
Power to grant bail where a reference has been made to the High Court
When a reference has been made to the High Court under Section 395 by a magistrate for getting an opinion on any act, regulation or ordinance or any other section under the CrPC, the magistrate may during the pendency of such reference, either commit the accused to jail or release him on bail to appear when called upon. Such discretion by the magistrate may be made after taking into account the nature and severity of the punishment provided in that act, regulation or ordinance.
Cancellation of bail granted by High Court
Neither the Magistrate nor the Sessions judge has the power to cancel the bail granted by the High Court under Section 438 unless the order passed by the High Court is temporary or applies only to a certain stage in the proceedings. Such power may be available if the new circumstances arise during the trial after bail has been granted by the High Court.
A bail bond is a document where a prisoner and one or more sureties guarantee to pay an amount fixed by the court for release of the prisoner, that he would attend the hearings of the charge that has been made against him.
There are two types of bonds:
- Personal bond: This is the bond stating that the person shall appear when called for the hearings. Here the accused doesn’t have to post but forfeits the amount if he fails to appear before the court according to the bond.
- Surety bond: In this type of bond, a person furnishes his bond with one or more sureties, and in such a case, if the person fails to attend, then the sureties would be made liable to pay the amount for his absence.
General provisions regarding bond of accused and sureties
Amount of bond and reduction thereof
Under Section 440, the amount of every bail bond executed in this chapter shall be fixed after taking due consideration of the circumstances of the case and the bond, in any case, should not be excessive.
Also, the High Court or Court of Session has the powers to direct the bail given by a police officer or a magistrate to be reduced.
Condition and execution of bonds
Section 441 deals with the provision relating to the condition and execution of a bail bond. Before releasing a person on bail or on his own bond, a bond must be executed by that person, and such bond shall be according to the police officer or court, as they think fit.
Also, if the person is released on bail where a bond has been given by one or more sufficient sureties, it must be made sure by the sureties that such person shall attend according to the time and place mentioned in the bond and shall continue unless otherwise asked by a police officer or the court.
If any other condition is to be imposed for the release of the person, such condition shall also be there in the bond. Such a bond may also require the released person to appear before the High Court, Court of Session or other courts for answering the charge.
For checking that the sureties are fit, the court may require them to file the affidavits for such fitness and sufficiency, and may also order an inquiry itself or by the magistrate to check their fitness or sufficiency.
Declaration of bond
As per Section 441A, every person acting as surety for the accused must declare before the court the number of persons to whom he has stood as security including the accused and should give therein all the relevant particulars.
Discharge from custody
Section 442 deals with discharge from custody. It says that as soon as a bond is executed for release of the person, such person shall be released, and if he is in jail, then the court in which the bond was executed shall direct the police officer of that jail to release the person, and the police officer may do so on receiving the receipt of that order.
Sufficiency of sureties and discharge of sureties
According to Section 443, if a person acting as surety is insufficient or is afterward found insufficient, then the court may issue a warrant for arrest of the accused person and ask such a person to get a sufficient surety, and if he fails to do so, then the court may commit him to jail.
Section 444 deals with the discharge of the sureties. It says that any of the sureties or all of the sureties joint may anytime for the appearance or the attendance of a person, apply to a Magistrate for wholly discharging their bond or in its relation to the applicant.
On such request, the Magistrate for the arrest of such a person and to be brought before the court, and shall direct the bond to be discharged on appearance of the person in so far as it relates to the applicant, and ask the applicant to find another sufficient surety or sureties, and in his failing to do so, may commit him to jail.
Bond in case of a minor
Section 448 talks about the bond required from a minor. Where the person who is to be released is a minor, then the bond should be executed by a surety or sureties only. A minor himself cannot get a bond executed for his release.
Landmark cases on bail
Hussainara Khatoon v. State of Bihar
This case dealt with the rights of the under trial prisoners, concerning habeas corpus rule.
Facts of the case: A petition of habeas corpus was filed regarding the administration of jails in the State of Bihar. It was found that a large number of prisoners including men, women, and children were put behind bars for years, awaiting their trial. Many of those prisoners had committed offences, for which they would have been given punishment not more than a few months or in some cases, two years, but they were behind jail for three to ten years and that too without any trial.
Here the court wanted the immediate release of those prisoners. Court said that fairness under Article 21 is impaired where a person is not given a speedy trial, where a person is not given pre-trial should be released on bail on a personal bond, where the person accused is indigent and there are no chances of him to abscond, where a person has been kept under trial for a time greater than the punishment he would have been awarded, where he is not given free legal aid, and where he is too poor to engage a lawyer, provided that the lawyer given by the state is not objected by him.
Regarding personal bonds, the court said that where a person has roots in the community and is not likely to abscond, the person shall be released. Court asked to take the following factors for ascertaining his roots in the community:
- His length of residence in the community.
- His employment status, history, and financial condition.
- His family ties and reputation in the community.
- His prior criminal record.
- The nature of offence committed, the apparent probability of conviction and the likely sentence.
Moti Ram v. State of MP
In this case, a poor mason was convicted. The apex court referred the matter to Chief Judicial Magistrate (CJM) to release him on bail, without making any specifications as to sureties, bonds etc.
The CJM fixed Rs.10,000 as surety and bond and subsequently refused to allow his brother to become surety as his property was in the adjoining village. The petitioner challenged it to the apex court.
Justice Krishna Iyer criticized the actions of the judge and said that the courts should be inclined to bail, not jail. The court said that the accused cannot be asked to furnish surety from the same district where the offence is being tried. Court further emphasized that bail can be given on personal bonds, as well as on sureties bond; the court shall also keep in mind the condition of the person while fixing the amount of the bond. And where an indigent person is involved, the court should be liberal in releasing them in the personal recognizance.
Bench-hunting or Forum-Shopping
Bench hunting refers to an offer by a litigant, along with its lawyers, to refer their matter to be heard by a specific judge or a bench to get a favourable order or judgement. It is also known as forum shopping. It can happen in three ways:
- By seeking a case to be referred to a specific judge,
- By avoiding a specific judge, or
- By writing a bogus complaint to Chief Justice of India to get an honest judge removed from a specific case.
Emerging trends in granting bail
The major changes relating to bail have been witnessed in the cases of anticipatory bail which has evolved over a period of time. The first case which laid down the principles for granting bail was Sibbia v. State of Punjab. Here, the court held that the power of granting anticipatory bail under Section 438 is extraordinary and cannot be exercised unless there are special circumstances. The court also said that such discretion should not be exercised in cases involving serious economic offences, due to public interest.
However in the recent case of P. Chidambaram v. Directorate of Enforcement which was a case involving serious economic offence, the court granted bail to P. Chidambaram saying that the availability of the appellant for further investigation, interrogation and facing trial is not jeopardized and he is already held to be not a ‘flight risk’ and there is no possibility of tampering the evidence or influencing the witnesses. The issue has been widely dealt here.
It is now clear that the primary objective of granting bail is not to release a person but to ensure that the person appears for the trial. The provision is also brought to prevent the personal liberty of a person and to make sure that no malicious complaint is filed. However, this is not an absolute right but subject to various limitations.
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