This article is written by Sneha Mahawar from Ramaiah Institute of Legal Studies, Bangalore. The article discusses the concept of bail as a right in the light of judicial precedents.
Bail is the conditional release of a person accused of a crime in exchange for a sum of money guaranteed in exchange for the accused’s attendance in court when the time comes. The individual who makes the payment serves as the surety. In a civil case, getting bail is one of the accused’s rights, however, in a criminal case, it is at the discretion of the bail issuing authority. In other words, bail is defined as monetary security traded for the release of an arrested individual as a guarantee of the individual’s attendance at trial.
It is a temporary release of a person from police custody but on a condition that the accused on bail will be available during the investigation of the case. Bail can be granted only when the accused has been arrested or is in anticipation of an arrest. In any such case, the accused can file an application in Court or police station to grant release from police custody.
Black’s Dictionary defines bail as “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court”.
Bail dates back to 399 BC when Plato attempted to arrange a bond in order to liberate Socrates. The circuit courts in Britain established a bail system in the Middle Ages. The contemporary idea of bail is largely derived from all of the medieval regulations that control it.
The Magna Carta, which was signed in 1215, was the first step toward providing citizens rights. It said that no one may be seized or imprisoned without his peers or the law of the national judging him.
The Statute of Westminster was adopted in 1275, dividing offences into bailable and non-bailable categories. It also specified which judges and authorities had the authority to issue bail judgments.
In 1677, the Habeas Corpus Act was added to the 1628 Right of Petition, giving the defendant the right to be informed of the allegations against him, as well as the right to know whether the accusations were bailable or not.
According to Kautilya’s Arthashastra, avoiding pre-trial custody was optimal, hence the notion of bail existed in ancient India as well. Bail was practised in the form of ‘Muchalaka’ and ‘Zamanat’ during the Mughal dynasty in the 17th century.
The Code of Criminal Procedure, 1973 governs bail at the moment. Although the term bail is not defined directly in the Act, the words bailable offence and non-bailable offence are specified in Section 2(a). The provisions of the Act pertaining to bail are governed by Sections 436–439.
Kinds of bail
When an individual commits a cognizable offence and is arrested without a warrant, the accused is then taken into police custody and after the period of custody expires he shall be sent to prison. Thereafter, regular bail is granted in case of non-bailable offences under Section 436 and Section 439 of the Code of Criminal Procedure, 1973 which gives the accused the right to be freed from police custody. Regular bail is the release of an accused from custody in order for him to appear at his trial.
This bail is provided as a temporary measure for a limited length of time, either while an application is pending or while an anticipatory or normal bail application is pending before the Court.
Interim bail is always conditional and can be prolonged; however, if it expires before the accused has been granted anticipatory or regular bail, and he fails to pay the sum necessary to continue the bail, he forfeits his right to freedom and will be taken under police custody.
The term “anticipatory bail” is self-explanatory. It is a sort of bail that is granted to someone who is expecting to be arrested by the police for a non-bailable offence. In recent years, this has become a very important topic since corporate competitors and other powerful persons sometimes try to frame their opponents in bogus charges. This is a type of advanced bail described under Code, Section 438. The police officials are unable to arrest someone who has been granted anticipatory bail.
Can bail be granted in any case
The rationale behind granting bail is that if the person accused of an offence is acquitted as a result of the trial then his/her personal life is affected. So he/she is released on bail under the condition that the accused shall be available for the entire duration of the investigation whenever required. There are two types of offence, namely, bailable and non-bailable.
Bailable offences are offences that are of a less serious nature in comparison to non-bailable offences. Thus, in case of a bailable offence, the bail is granted easily after filing an application under Section 436 of the Code of Criminal Procedure, 1973 at the police station or the Court.
Conditions under which the bail can be granted
- The accused is of 16 years or less.
- The accused is a woman.
- The accused is ill or infirm.
- The accused who is a habitual offender will not be granted bail unless he has a special reason.
Non-bailable offences are offences that are of a very serious nature. These are offences under which bail is not granted usually except in certain exceptional circumstances. In non-bailable offences, bail is not considered as the right of the accused. However, in case of such offences an application has to be filed under Section 437 of the Code of Criminal Procedure, 1973 to the Magistrate.
Conditions under which Magistrate can reject bail
There are various conditions under which the Magistrate can reject bail in case of non-bailable offences such as:
- The accused has been charged for an offence for which the sentence is 7 years or more.
- The accused has been charged for an offence for which the sentence is the death penalty.
- The accused has been charged with the offence of treason.
- The accused has been charged for the offence of murder/ rape or any such offence against the human body.
- The accused has been charged for an offence against property for which a provision is created under the Indian Penal Code, 1860.
- The accused has been charged for an offence of conspiracy.
- The accused has been charged for an offence of abetment of any above-mentioned offences.
2005 Amendment : Section 436(A)
Section 436(A) was introduced in the Code of Criminal Procedure, 1973 after the 2005 amendment. It lays down the conditions and specifies the length of time for which an accused can be kept under police custody.
This Section states that if an accused has spent half of his sentence of such offence in custody then he can be released on bail. For instance, if an offence is punishable for 3 years and the accused has been kept in custody for 1.5 years when the trial is ongoing then the accused can be released on temporary bail. But even after granting bail if he is required for investigation then he has the obligation to appear.
As we are already aware that for taking bail in case of a bailable offence an application can be filed at the police station or Court under Section 436 of the Code of Criminal Procedure, 1973. Similarly, for taking bail in case of a non-bailable offence an application can be filed at the Magistrate’s Court under Section 437 of the Code of Criminal Procedure, 1973. However, there are many restrictions and conditions under which the Magistrate cannot grant bail.
But, under Section 439 of the Code of Criminal Procedure, 1973 both the Court of Sessions and High Court has the power and authority to grant bail under any matter and any circumstances.
Granting of bail after an arrest
- After an individual has been arrested for a crime he can apply for bail.
- Before applying for bail it is necessary for the accused to know whether the offence for which he is charged is a bailable offence or a non-bailable offence.
- If the accused is charged for the commission of a bailable offence then the bail application shall be filed under Section 436 of the Code of Criminal Procedure, 1973 at the Court or the police station. After the bail is granted then the accused has to sign the bail bond and pay the sum of money mentioned therein. The accused will also require two sureties to sign the bail bond along with him who will take the guarantee that the accused will not escape and shall be present throughout the investigation.
- If the accused is charged for the commission of a non-bailable offence then the bail application shall be filed under Section 437 of the Code of Criminal Procedure, 1973 at the Magistrate’s Court or under Section 439 of the Code of Criminal Procedure, 1973 at the Session’s Court or High Court. If the bail is granted then the accused has to sign the bail bond and pay the sum of money mentioned therein. The accused will also require two sureties to sign the bail bond along with him who will take the guarantee that the accused will not escape and shall be present throughout the investigation.
Granting of bail before an arrest
Anticipatory bail is covered under Section 438 of the Code of Criminal Procedure, 1973. If an individual has reasons to believe that they can be accused of a crime and be arrested in future so he can apply for anticipatory bail in Court. After such bail is granted by the Court, police officials have no authority to arrest such accused. Anticipatory bail is always taken prior to being arrested.
Conditions to be taken into consideration by Court before granting of anticipatory bail
- Seriousness, nature and gravity of the case.
- The accused requesting anticipatory bail is a habitual offender or not.
- The accused requesting anticipatory bail is a past convict or not.
- The accused requesting anticipatory bail will flee the country or not.
Conditions that the Court can impose on the person demanding anticipatory bail
- The accused has to be present during the investigation whenever required.
- The accused shall not influence the witnesses under any circumstances.
- The accused shall not tamper with the evidence and witnesses under any circumstances.
- The accused shall not be allowed to leave the country.
- Any other condition the Court deems fit to impose on the accused.
Section 167 : an exception to the cancellation of bail
Under Section 167 of the Code of Criminal Procedure, 1973 if the investigation is ongoing for the past 60-90 days and still the investigation is incomplete and no charge sheet has been filed then the Court has the duty to realise the accused from police custody on bail.
Even if the charge sheet is filed the Court cannot straightaway reject the bail until and unless there are any special circumstances.
Bail as a right
Bail is granted as it protects the right to life and liberty enshrined under Article 21 of the Indian Constitution which states that “No person shall be deprived of his life or personal liberty except according to the procedure established by Law”. It implies that even if they are accused of a crime, everyone has the right to defend their rights and freedoms. Bail allows individuals to safeguard their liberty by allowing them to leave police custody and defend their case with all means at their disposal. They can’t prepare their case for trial while incarcerated since the accused person who is free is in a far better position to handle the case and adequately defend them. Bail is based on the premise that a person is innocent until proven guilty.
It is incorporated in Article 11(1) of the Universal Declaration of Human Rights as a fundamental concept of criminal law. It also represents the fact that the right to bail is a basic right, as the state cannot deprive individuals of their life and liberty until they have been found guilty beyond a reasonable doubt.
The rationale behind keeping bail as a basic right is a risk that the complainant filing the FIR is doing so out of malice, or that powerful people are trying to put their competitors in fake cases in order to embarrass them or to blackmail someone for something intrinsic.
Sushila Aggarwal v. State of NCT of Delhi
In this case, Justice Bhatt put forward his preeminent statement while handing down the judgment, stating that because Parliament has not deemed it appropriate to curtail citizens’ rights and the power of courts to grant anticipatory bail, it is not in the public interest to reduce such forces and limit citizens’ liberty. Citizens’ rights are basic, and they are unrestricted. The bench attempted to link anticipatory bail to India’s constitutionally protected basic rights.
Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P.
The Supreme Court of India concluded in this case that the provision of bail preserves and maintains the ideal of liberty and freedom inherent in Article 21 of the Indian Constitution and has a clear link to it.
Gurbaksh Singh Sibbia v. State of Punjab
In this case, the concerned rejected the petitioner, who was the then-Minister of Punjab’s Irrigation and Power, anticipatory release due to corruption allegations. The court ruled that this clause should only be applied in rare circumstances. They also stated that the court should not utilise discretion in significant economic crimes involving flagrant corruption in order to preserve the public interest.
Later on appeal, the Supreme Court’s five-judge panel overturned this decision due to earlier precedents and judicial interpretation.
Siddharam Mhetre v. State of Maharashtra
In this case, the Supreme Court overturned the High Court’s ruling and granted the accused Anticipatory bail based on the precedent of the Sibbia case. They also stated that the provision can be allowed if the accused is ready to cooperate with the inquiry and is not planning on fleeing before the trial is over.
This decision was utilised as precedent in Bhadresh Seth v. State of Gujarat because both instances provide the accused the right to life.
As a result, giving bail is a right as a protector of life and liberty that allows the claimed accused to be free for the time being while safeguarding him or her from unscrupulous and venal false claims. In criminal law, the concept of bail is a noble one. In the case of non-bailable offences, the accused may be granted bail subject to certain limitations and restrictions. The concept of bail implies that the accused cannot be assumed guilty until his guilt is established. Bail also introduces the beautiful concept of personal liberty into the picture. The clauses are included in order to give effect to the Indian Constitution’s reference of personal liberty.
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