The article is written by Tushar Singh Samota, a law student from the University Five Year Law College, Rajasthan University. It gives a detailed description of the term “bail” and its types by discussing each type in-depth, along with its legal status and its cancellation.
This article has been published by Sneha Mahawar.
Table of Contents
“Every criminal offence is an offence against the state; thus, society has a crucial stake in whether bail is granted or denied. The sanctity of individual liberty and the interests of society must be perfectly balanced in the decision on whether to grant or deny bail.”
- Justice Dalveer Bhandari in S.S. Mhetre v. State of Maharashtra (2010)
The term “bail” may be traced back to the old French word “Baillier”. Its true meaning is to deliver or hand over. The term “bail” is not defined in India’s Criminal Procedure Code, 1973 (CrPC). Black’s Law Dictionary describes bail as a security such as money or bond, especially required by a court for the release of a prisoner who must appear at a future date. In the case of Kamlapati v. State of West Bengal (1978), the Supreme Court defined bail as a mechanism that is established for attaining the synthesis of two essential conceptions of human worth, namely, the right of an accused to personal freedom and the public interest in which a person’s release is conditional on the surety producing the accused person in court to stand trial.
As such, “bail” refers to the release of a person from legal custody. The law’s policy is to allow bail rather than prohibit it by the usual methods. Thus, bail is granted as a norm, while rejection is an exception, as held in the Satender Kumar Antil v. Central Bureau of Investigation (2022) (CBI) case. In this article, the author has discussed the concept of bail and its types. The article will also touch upon the classification of offences for bail purposes as well as the concept of cancellation of bail.
The legal status of bail
Bail has obtained its legal status from the following sources:
- Article 21 of the Indian constitution: Article 21 gives everyone the right to life and personal liberty. It provides the fundamental right to live with human dignity and personal freedom, which entitles us to seek bail when detained by any law enforcement entity.
- Section 438 of Code of Criminal Procedure, 1973: Section 438 of the CrPC clearly states that anticipatory bail is only granted in case of non-bailable offences. The term bail is not defined in the CrPC. Section 2(a) only defines the terms “Bailable Offence” and “Non-Bailable Offence”. It is based on the proposal of the Law Commission of India in its 41st Report, which suggested the inclusion of an anticipatory bail provision.
- Article 11 of the Universal Declaration of Human Rights: Bail, particularly anticipatory bail, is founded on the legal concept of presumption of innocence, which states that everyone accused of a crime is presumed innocent until proven guilty. This is a fundamental value established in Article 11 of the Universal Declaration of Human Rights.
Classification of offences for bail purposes
The following offences are classified for the purpose of bail:
- Bailable Offence: Section 2(a) of the Code of Criminal Procedure defines bailable offences. An offence that is categorised as bailable is referred to as a bailable offence. In the event of such an offence, bail can be awarded as a matter of law under Section 436 of the CrPC when such prerequisites have been satisfied. In the case of bailable offences, the police may grant bail to the offender at the moment of arrest or detention.
- Non-Bailable: A non-bailable offence is one in which bail cannot be granted as a matter of right unless ordered by a competent court. In such instances, the accused may seek bail under Sections 437 and Section 439 of the Criminal Procedure Code of 1973. These are serious offences, as opposed to bailable offences. In the event of non-bailable offences, the penalty is three years or more.
It should be noted that the Court’s judicial discretion governs the issue of bail for non-bailable offences.
Classification of bail
Depending on the stage of the criminal proceeding, a person may ask for one of four types of bail in India:
- Regular Bail: Regular bail is frequently issued to an individual who has previously been arrested and detained by police. The accused has the right to be freed from such confinement under Section 437 and Section 439 of the CrPC. So, a regular bail is simply the release of an accused from jail to ensure his attendance at the trial.
- Interim Bail: Interim bail is bail issued for a short period. Interim bail is granted to an accused before the hearing for regular or anticipatory bail.
- Anticipatory Bail: If a person suspects that he may be arrested for a non-bailable offence, he may petition for anticipatory bail. In recent years, this has become an important problem because corporate competitors and other prominent persons sometimes seek to frame their opponents with fake charges. It’s similar to obtaining advance bail under Section 438 of the CrPC. A bail under Section 438 may be bail before arrest, and an individual cannot be arrested by the police if the court has granted anticipatory bail.
- Statutory Bail: The remedy of statutory bail, also known as default bail, is distinct from bail obtained in the ordinary procedure under CrPC Sections 437, 438, and 439. As the name implies, statutory bail is given when the police or investigating agency fails to file its report/complaint within a certain time frame.
How to apply for bail
To apply for bail, the accused must sign a bail bond, which is a legal instrument, and provide the sum stated in the bail bond. There must also be two sureties who take the accused’s promise that the accused will appear in court or at the police station whenever he is required to be present for the investigation of the court proceedings.
A bail bond is an agreement made by the accused to appear in court and cooperate with the investigation in exchange for a fee. Other limitations, such as the person’s inability to leave the country while on bail, are included in the bail bond. If the individual fails to comply with the bail bond, a warrant for his or her arrest might be issued.
Regular bail is the legal mechanism by which a court can order the release of someone in detention on suspicion of committing an offence, generally on the condition that the person does not leave or otherwise hinder the course of justice. These requirements may require the execution of a “personal bond” or a court may compel the execution of a bond with sureties. When a person is detained on suspicion of committing a bailable offence, bail becomes a right, and the person may be released in accordance with the procedures outlined in Section 436 CrPC. Whereas when a person is taken to prison on suspicion of committing a non-bailable offence, bail is discretionary, and the individual may be freed only if a good case is made out.
Section 437 applies to bail petitions submitted in magistrates’ courts, whereas Section 439 applies to bail applications filed in courts of Session or a High Court. The granting or rejection of ordinary bail is an exercise of judicial discretion governed mostly by norms and a few bright-line regulations, as provided in Section 437 of the CrPC.
Factors taken into account while granting bail in non-bailable offences
The court has the discretion to grant bail in the case of a non-bailable offence; hence, an accused individual is not necessarily entitled to be released on bail upon the filing of sureties and a bond. The court and police officers must decide whether to release them. When determining how far this discretion extends, the following factors must be considered:
- The gravity of the crime; for example, if the offence is serious and punished by death or life in prison, the chances of securing bail are lower.
- The nature of the charge, such as whether it is serious, trustworthy, or frivolous;
- The penalty’s harshness, the duration of the term, and the possibility of the death penalty.
- The credibility of the evidence, whether it is reliable or not;
- The risk of the accused fleeing or running away if freed;
- Prolonged trials that go above and beyond what is required;
- Allowing the petitioner to prepare his defence;
- The accused’s health, age, and gender; for example, a person under the age of 16, a woman, or someone who is ill or infirm may be freed.
- The nature and gravity of the circumstances surrounding the crime;
- The accused’s position and social standing in regard to the witnesses, particularly if the accused will have the capacity to manipulate witnesses after release;
- The public’s interest and the possibility of continued criminal action following dissemination.
Authorities empowered under Section 437 CrPC to grant bail
Section 437 empowers the court and the officer-in-charge of the police station who arrests or detains someone without a warrant or the person who was charged with or suspected of committing a non-bailable offence the authority to determine whether or not to grant bail. Although this Section covers the power or discretion of a court and a police officer in charge of a police station to issue bail in non-bailable offences, it also limits a police officer’s ability to issue bail and defines specific rights of an accused person to get bail when he is being tried by a magistrate.
According to Section 437 of the CrPC, the trial court and the magistrate have the authority to grant or reject bail to anybody who has been charged with or accused of committing a crime for which no bond is available. Only one type of police official, i.e., the officer-in-charge of the police station, is authorised under Section 437(1) to release a person accused of a non-bailable offence on bail. Given the risk and stakes involved, the decision to issue bail must be utilised with extreme caution because it is permissive rather than mandated. Before acting, a police station officer should be convinced that using his power would not jeopardise the prosecution’s ability to establish that the accused is guilty. The officer-in-charge must maintain the bail bonds until they are released, either by the accused appearing in court or by a competent court decision, and must record the reasons or extraordinary grounds for releasing the accused in the case notebook.
For the purpose of bail, the legislation has classified non-bailable offences into two categories:
- Those punished by death or life imprisonment; and
- Those who aren’t.
If a police station officer has reasonable grounds to believe that a person has committed an offence punishable by death or life imprisonment, the offender cannot be released on bail. When assessing whether to grant bail, a police officer is not allowed to consider the accused’s age, gender, disease, or handicap. These problems can only be considered by a court. The officer-in-charge of the police station may issue bail only where there are no reasonable grounds to assume that the accused has committed a non-bailable criminal offence or when the non-bailable offence is not punishable by death or life imprisonment.
Power of High Court or Sessions Court under Section 439 CrPC
Section 439 CrPC empowers the High Court or Sessions Court to grant bail. Section 437 of the CrPC prohibits the grant of bail in situations of offences punishable by death or life imprisonment unless it is beyond doubt that the accused is guilty; however, Section 439 permits the Sessions Court or High Court to grant bail even in such cases. When it comes to bailing out someone who has been accused of an offence and is in detention, the High Court and Sessions Court have some specific authorities under Section 439 of the CrPC, 1973. If a Magistrate declines to provide bail to an accused individual, the High Court or the Court of Session may grant bail in proper instances. According to Section 439(1) of the CrPC, a High Court or Court of Sessions may order the following:
- That anyone detained after being charged with a crime is released on bail;
- That if the offence is of the kind listed in Section 437(3), any restriction imposed by a magistrate while releasing a person on bail be overturned or changed.
However, before granting bail to someone accused of a crime that can only be prosecuted by the Court of Sessions or, even if it can, entails a life sentence, the High Court or Court of Sessions must notify the public prosecutor of the application. This is correct unless the High Court or the Court of Sessions deems that doing so is unfeasible for reasons that must be documented in writing. A High Court or Court of Sessions can decide that a person who was released on bail under Chapter XXXIII (regarding bail) be arrested and put to jail under Section 439(2) of the CrPC. Even though the High Court has extensive discretion to issue bail, a variety of conditions must be considered in situations involving non-bailable offences.
Scope of Section 439 CrPC
The marginal note to Section 439 clearly demonstrates that the phrase “special power” is used in the Section, which in a sense implies “special or greater,” which means that these courts, notably the High Court and the Court of Sessions, have a greater ability to grant and cancel the bail. They have the authority to change the conditions of bail and impose any additional restriction imposed by a magistrate under Section 437. The marginal note to Section 439 also shows that the bail clause allows for concurrent jurisdiction. This does not, however, mean that the accused can file an application in both courts at the same time. As a result, in most circumstances, an application should be submitted first to the Court of Sessions and then to the High Court in case the Court of Sessions denies it.
Section 439’s powers are unrestrained by any constraint other than that which governs all discretionary powers bestowed by a court. Though Section 439’s discretion is unfettered in certain aspects and broad enough to provide bail in the case of the most serious non-bailable offence, it must be applied judicially in conformity with well-established standards. The Court remarked in Kanwar Singh Meena v. the State of Rajasthan and Others (2012) that, while Section 439 of the Code provides the Court of Session and the High Court additional jurisdiction in granting and cancelling bail, these Courts also follow the same factors, namely
- the accused’s character, proof, position, and standing.
- the seriousness of the offence,
- the possibility of the accused evading justice and
- the possibility of tampering with evidence and manipulating witnesses and among other things.
The Court further observed that each criminal case provides a unique factual scenario that determines the court’s bail judgement.
It is now well recognised that there is no legal obstacle to a party submitting an application for ordinary bail under Section 439 CrPC to the High Court or the Sessions Court. This Section confers independent authority on the High Court or the Sessions Court, and when the High Court uses such power, it does not exercise any revisional jurisdiction but rather its original jurisdiction to issue bail. As a result, even though the High Court and Sessions Court have concurrent jurisdiction under this provision, the fact that the Sessions Court denied bail under this Section does not bar the High Court from considering a comparable application based on the same facts and for the same charge.
However, if the party elected to approach the High Court first and the High Court dismissed the application, the case would be dismissed if the Sessions Court is approached with a comparable application based on the same circumstances. The accused may not apply for bail in both the Sessions Court and the High Court at the same time.
This type of bail is also known as mandatory bail or default bail. This is a right to bail that arises when the police fail to finish an investigation in respect of a person in judicial custody within a certain time frame. It is codified in Section 167(2) of the CrPC. In Bikramjit Singh v. State of Punjab (2020), the Supreme Court held that an accused has an inalienable right to “default bail” if he applies after the stipulated term for investigation of an offence has expired but before a charge sheet is submitted. The right to default bail under Section 167(2) of the CrPC is not just a legislative right; it is also part of the legal system created under Article 21. In general, the right to bail on the investigative agency’s default is regarded as an “unalienable right,” although it must be used at the appropriate moment.
Regardless of the nature of the offence, default bail is a legal entitlement. The time limit for filing the charge sheet begins on the day the accused is detained for the first time. Section 173 of the CrPC requires a police officer to file a report after completing the appropriate investigation of an offence. In common usage, this report is known as the “Charge Sheet”.
Provision for statutory bail
Section 167(2)(a) CrPC contains a provision concerning statutory bail. It states that the Magistrate may permit the accused person’s detention other than in police custody for a period of up to 15 days, but not exceeding the period of 90 days if the inquiry relates to an offence punishable by death, life imprisonment, or more than ten years in prison, and 60 days if the inquiry is about anything else. If the investigation has not been finished after 90 or 60 days, the accused should be released on bail. Nevertheless, the court may set such restrictions when granting bail as the court deems necessary.
Where statutory bail shall lie
According to Section 190 of the CrPC, although the offences may be triable in different courts, no court other than a Magistrate of the First Class and a Magistrate of the Second Class particularly empowered shall take cognizance of the crime. The lower court shall submit the case to the Court of Sessions after taking cognizance of the offence on any complaint, police report, or suo moto. As it is the court of the Magistrate of the First Class and the Magistrate of the Second Class who shall take cognizance of the offence and exercise all the powers to remand the accused in police or judicial custody during the pendency of the investigation, these courts have only the power to grant default bail under Section 167 (2)(a).
When the accused is able to use his right to statutory bail
When a person is detained without a warrant, the police are obligated to bring him before a magistrate if the inquiry is not concluded within 24 hours and to complete the investigation without undue delay. Although there is no time restriction specified in the law in which the inquiry must be completed, except in situations involving child rape as specified in Section 173(1A) of the CrPC, it is specified in Section 167(2)(a) of the CrPC that if the investigation is not concluded within 90 or 60 days, depending on the circumstances, the accused person shall be freed on a bond if he prepares and furnishes the bail. It is therefore at the conclusion of the period of 90 days or 60 days, as the case may be, that the accused gains the right to default bail.
Although it is evident from a plain reading of Section 167 that the accused has a basic right to be freed on bail if the inquiry is not completed after a period of 90 or 60 days, the question of whether the right has accrued in favour of the accused arises in the following circumstances firstly, when the investigation report is received after the expiration of 60 or 90 days, depending on the case, but on the same day that the accused makes an application for default bail. In such a case, the accused’s rights shall not be revoked. Once the right has accrued, it is unassailable, and the investigating agency’s submission of the investigation report will not prevent the accused from exercising his right to default bail.
Another issue arises when, despite the fact that the accused has the right to default bail, he does not seek it. In such a case, Section 167 unequivocally states that the accused shall not be freed from jail so long as he does not furnish the bail. However, no written application is required, and an oral statement is sufficient to exercise the privilege under Section 167. The issue also arises when the accused diligently exercises his right to default bail and makes an application for it, but the application is refused, and If the accused files an appeal with the appellate court and the charge sheet is completed during the pendency of the case, the accused forfeits his right to default bail because the petition to the appellate court is only a continuation of the action before the higher court.
Section 438 of the Criminal Procedure Code of 1973 provides for anticipatory bail in Indian criminal law. The Law Commission of India, in its 41st Report, brought out the importance of adopting a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to give “anticipatory bail.” This Section permits a person to request bail in advance of an arrest on suspicion of a non-bailable offence. The primary goal of including this Section was to ensure that no one was imprisoned in any form until and unless found guilty.
Anticipatory bail under the CrPC
If a person has reason to believe that he may be arrested on suspicion of committing a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section that, in the event of such an arrest, he shall be released on bail, and the court shall grant him anticipatory bail. Section 438(1A) of the Criminal Procedure (Amendment) Act, 2005, addresses the following elements that the court takes into account before granting anticipatory bail:
- The nature and seriousness of the charge.
- The applicant’s background, particularly whether he has ever served time in jail following a court conviction for any cognizable offence.
- The applicant’s ability to flee from justice.
- If the charge is made with the intent to injure or humiliate the applicant by having him arrested, either reject the application immediately or give an interim order granting anticipatory bail.
If the High Court or Court of Session grants interim bail to the applicant, the court shall immediately issue a show cause notice, attested with a copy of the order, to the Public Prosecutor and the Superintendent of Police in order to provide the Public Prosecutor with a reasonable opportunity to be heard when the application is finally heard by the court. The applicant seeking anticipatory bail must be present at the final hearing of the application and the issuance of the final order by the court.
Eligibility to obtain anticipatory bail
When any person has grounds to suspect that he will be arrested on false or trumped-up accusations because of enmity with someone or because he worries that a false case would be set up against him, he has the right to petition the Court of Session or the High Court under Section 438 of the CrPC for the grant of bail, and the court may if it sees proper, direct that he be released on bail. As stated in the case of State of M.P. v. Pradeep Sharma (2013), an accused who has been designated an absconder/proclaimed offender under Section 82 of the CrPC and who has not cooperated with the investigation shall not be granted anticipatory release. Thus, the following conditions must be met in order to get anticipatory bail:
- A requirement that the individual makes himself accessible for questioning by a police officer as needed;
- A condition that the person not, directly or indirectly, provide any enticement, threat, or promise to any person familiar with the facts of the case in order to persuade him not to disclose such details to the court or any police officer;
- A requirement that the individual should not depart India without the court’s prior approval.
Apart from this, the Supreme Court in the case of Gurbaksh Singh Sibbia v. State of Punjab (1980) stated that the contrast between an ordinary order of relief and an order of anticipatory bail is that where the former is provided after arrest and consequently signifies release from the custody of the police, the latter is issued in advance of arrest and is, therefore, effective at the same moment of arrest. In another case, Rukmani Mahato v. the State of Jharkhand (2017), the Hon’ble Supreme Court advised the Trial Courts not to issue regular bail to an accused if he/she has already received interim anticipatory bail from a superior court and the matter is still pending before the higher court.
Interim bail is a temporary bail issued by the court while any application is ongoing or until an anticipatory bail or regular bail application is heard by the court. It is issued as per the requirements of the case. The interim bail time can be prolonged, but if the accused person fails to pay the court for confirmation and/or continuation of the interim bail, his freedom will be lost, and he will be put in jail, or a warrant will be issued against him.
This is not the same as anticipatory bail, which is given while the bail application is pending. Interim bail can only aid accused people who believe they have been falsely accused of a crime and wish to get out of jail or on bail as quickly as feasible. Interim bail does not have a separate Section in CrPC, but the same restrictions apply in this instance as well.
Interim bail – court’s inherent power
When a person asks for normal bail or a regular bail, the court usually schedules the application after a few days so that it may review the case diary, which must be received from the police authorities, and the applicant must remain in jail in the interim or following period. Even if the applicant is later freed on bond, his image in society may be irreversibly harmed. A person’s reputation is a valued asset and a component of his right under Article 21 of the Constitution.
As a result, it can be concluded that the authority to grant bail includes the inherent jurisdiction of the concerned court to grant interim release to a person until the ultimate disposition of the bail application. Although granting interim bail is at the discretion of the court, the option exists.
Essentials/ characteristics of interim bail
Interim bail has the following characteristics:
- It is offered only temporarily or for a short period.
- It is issued while an application for an anticipatory bail or regular bail is pending in Court.
- Once the bail term expires, the offender will be arrested without a warrant.
- There is no set procedure for cancelling Interim Bail.
Concept and scope of interim bail
As previously stated, the interim release is given for a limited time while anticipatory and regular bail hearings are ongoing in court. Section 438 refers to the court’s authority to issue an interim order in the context of a pending anticipatory bail hearing. Although interim bail is not specified anywhere in the CrPC, the courts have frequently attempted to interpret the meaning and extent of interim bail through their decisions. Interim bail was characterised in the case of Sukhwant Singh & Ors v. State of Punjab (1995) as a measure of protecting the accused’s image. The Supreme Court concluded in this case that the authority of the courts to give interim relief is inherent in their power to grant bail. The idea of interim bail is significant because an accused may risk arrest even before the verdict on his bail is issued. Interim bail is therefore granted when the court is persuaded that it is necessary to safeguard the accused from being wrongfully arrested or imprisoned. In Lal Kamlendra Pratap Singh v. the State of U.P. and Ors (2009), the Court ruled that interim bail should be granted in appropriate circumstances while awaiting the outcome of the final bail application because arrest and imprisonment could do irreparable harm to a person’s reputation.
General grounds for granting interim bail
In Parminder Singh and Ors. v. the State of Punjab (2001), the Hon’ble Delhi High Court stated that interim bail should be granted in the following circumstances:
- When there is no chance that the accused will escape prosecution; and
- When there is no chance that the defendant will tamper with the evidence.
- When there is no justification for constrained questioning, and
- When the anticipatory bail hearing must be rescheduled.
It is essential for Sessions Judges and Additional Sessions Judges to be cautious in directing the release of the accused in appropriate cases where specific directions have been issued by the High Court for releasing the accused on interim bail. In such circumstances, the Sessions Judges/Additional Sessions Judges must invariably state in their orders that the accused people must be freed as soon as possible and should not be kept only to verify sureties.
Significant bail provisions in the CrPC
|436||Under what circumstances should bail be granted|
|436A||Maximum time of incarceration for pre-trial prisoners|
|437||Bail if the offence is not bailable|
|438||Direction for granting bail to individual facing arrest (Anticipatory bail)|
|439||Special bail powers of the High Court or Court of Session|
|446A||Bond cancellation and bail bond|
Cancellation of Bail
The CrPC provides that the accused, public prosecutor, complainant, or any other aggrieved person may use the power to terminate or cancel the bail. Along with it, the High Court, Court of Session, and various lower courts, including Magistrates, have the authority to cancel previously granted bail. Courts other than the High Court and the Court of Session, on the other hand, can only cancel the bail granted by them. The High Court and Court of Session have greater cancellation powers, and they can even cancel bail issued by lower courts. The lower courts, including Magistrates, have the authority to cancel bail under Section 437(5) of the Code, whereas the High Court and Court of Session have the authority under Section 439(2) of the Code.
The jurisdiction of the Court of Session and the High Court is concurrent under Section 439(2) of the CrPC. The offended party may submit an application for cancellation of the magistrate’s bail before the Court of Session or the High Court. It would not be a breach of judicial decorum if such a petition was submitted before the Supreme Court instead of the Court of Session, as held in the case of Rubina Zahir Ansari v. Sharif Altaf Furniturewala (2014).
The Supreme Court has unequivocally held in Mahipal v. Rajesh Kumar @ Polia and another (2019) that if the decision in issue is wholly irrational and wholly unjustified, the court may employ its authority under Section 439(2) of the CrPC to revoke the bail granted in favour of the respondent. Aside from these, the power of bail cancellation may be used in the following circumstances:
- On the merits of a case, especially on the grounds that the order granting bail was perverse, granted without proper thought, or in breach of any substantive or procedural law; and
- On the basis of misuse of liberty following the issuance of bail or other supervising circumstances.
Thus, if the cancellation of bail is requested on the basis of a supervening event or a fact unknown to the prosecution and the court when bail was granted, the petition under Section 439(2) or Section 437(5) might be submitted before the same court. However, if the constitutionality of the ruling granting bail is challenged through a petition under Section 439(2), the petition must be filed before a court higher in the judicial hierarchy. That is, if a magistrate’s order permits bail, a petition under Section 439(2) may be submitted before the Court of Session or the High Court. However, if the bail order was issued by the Court of Session, its legitimacy may only be questioned in the High Court. If the High Court grants bail, the constitutionality of such a ruling can only be appealed before the Supreme Court. Even the Supreme Court, which has immense powers, is guided by the same criteria that would bind lower courts when evaluating applications under CrPC Sections 437(5) or 439(2).
Grounds for cancellation
It is now widely accepted that cancellation of bail is an order that infringes on an individual’s liberty. As a result, it should not be used casually. It stands on a different foundation than bail refusal, and hence the standards used in both circumstances are different. In Aslam Babalal Desai v. State of Maharashtra (1992), the Supreme Court made a distinction between a bailable and a non-bailable offence. According to the court, it is easier to deny a bail application in a non-bailable matter than it is to rescind a bail that has already been granted. This is because cancelling bail interferes with the accused’s liberty, which has already been guaranteed by the court’s discretion or by the force of law.
More precisely, the authority to re-arrest an accused who has been released on bail must be utilised with caution and prudence. The Supreme Court has recognised and spelt out a list of supervening factors in a multiplicity of rulings that might necessitate an order from the court resulting in bail cancellation, but this list is illustrative and not exhaustive, as held in the case of Mohd Abdul Kadir Chaudhary v. Abdul Basit (2013). The following are the general grounds for bail cancellation:
- The accused abuses his freedom by engaging in similar illegal action,
- Obstructs the investigation’s progress,
- Tampering with evidence or witnesses.
- Threatens witnesses or engages in similar acts that might impede an efficient investigation,
- The possibility of his escaping to another nation exists.
- Tries to avoid detection by going underground or being inaccessible to the investigating agency.
- Tries to put himself outside the reach of his surety, and so on.
The Law Commission of India referred to this list in its 268th Report as well. The above list is typical of the reasons for which an order for cancellation is frequently issued. These mostly deal with subsequent occurrences or incidents that occurred after the bail was granted. However, judicial decisions have expanded the boundaries of the court’s jurisdiction under Section 439(2).
It is now clear that an order granting bail that is tainted by obvious illegality or perversity and does not provide grounds for the ruling can be overturned in a proceeding under the aforementioned Section. Under the same clause, an order granting bail based on irrelevant evidence or an order that does not take relevant material into account might be revoked. In Prakash Kadam v. Ram Prasad Vishwanath Gupta (2011), the court ruled that if the accused faces significant charges, his bail may be revoked even though he has not exploited the bail given to him. The Supreme Court has even gone so far as to rule that the illegality or perversity of the decision granting bail is an “independent ground” for bail cancellation. Similarly, if the prosecution cures its defects/default by submitting a charge sheet or otherwise, the Court of Session and the High Court have the authority to terminate the bail and take the accused into jail under Section 167(2) of the Code.
It is obvious from the preceding discussion that in instances where the legitimacy of the bail order is being challenged, an application for bail cancellation must be submitted to a court higher than the one that granted release. However, the higher court does not hear appeals from bail orders, particularly when there is no accusation of the accused interfering with the inquiry or tampering with witnesses/evidence. The petitioner must provide compelling and overwhelming reasons for bail cancellation. In the matter of State v. Imran Khan (2017), the state petitioned the Bombay High Court to vacate a bail decision obtained by the Special Court due to jurisdictional issues. The High Court refused to hear the petition, citing the delay in submitting it as well as the absence of compelling and overwhelming reasons justifying such cancellation. It also appears that if the judge who granted bail did not examine some pertinent information while granting bail, this would weigh against the accused’s apparent compliance with the bail requirements. When it comes to filing a cancellation case in court, the courts have granted the prosecution some flexibility.
The facts creating the aforementioned grounds for cancellation do not have to be established beyond a reasonable doubt.
In conclusion, the right to life and personal liberty is just too important to be ignored. The Indian judicial and legal systems have frequently emphasised the significance of such unalienable rights of persons, notably in the circumstances of bail approval and denial. The courts must be mindful, though, that dishonest litigants and people must be dealt with brutally when they exploit and abuse judicial tools. The law unquestionably helps and supports the upright, but it cannot be employed to further or carry out a deceptive plot.
There is also a significant desire for a comprehensive reform of the bail system that takes into account the socioeconomic status of the bulk of our population. When granting bail, the court must consider the accused’s socioeconomic situation and be empathetic toward them. A thorough investigation may be conducted to discover whether the accused has roots in the community that would dissuade him from escaping the court.
Frequently asked questions(FAQ)
Can anticipatory bail be revoked?
Yes, When granting anticipatory bail, the court sets various terms and restrictions that, if violated, may result in the cancellation of such anticipatory bail. Second, if the court receives an application from either the complainant or the prosecution, the anticipatory bail may be terminated.
What is the maximum term of detention for an undertrial prisoner?
According to Section 436A of the CrPC, a trial prisoner must be freed on bail by the court if he has served one-half of the maximum length of imprisonment that such a person would have spent as punishment if convicted.
When may a court deny bail?
An accused person should not be freed if there are reasonable grounds to believe that he is guilty of an offence punishable by death or life imprisonment. A person may not be freed if the offence is cognizable and he has previously been convicted of an offence punishable by death, life imprisonment, or imprisonment for seven years or more or if he has previously been convicted two or more times.
Can a person be granted bail if he is charged with a non-bailable offence?
Yes. An accused may be granted bail for a non-bailable offence. Bail can be granted from the Sessions Court or the High Court, depending on the gravity of the offence and the discretion of the court.
Is it necessary for the individual to obtain regular bail while he already has anticipatory bail?
No, the individual does not need to post regular bail since his/her anticipatory bail will be valid until the trial procedure is completed unless the judge cancels it. In such circumstances, anticipatory bail is converted to regular bail at the court’s request.
What is the concept of cancellation of bail?
The court has the authority to revoke bail at any time. The court has this authority under CrPC Sections 437(5) and 439(2). The court can cancel the bail granted by it and ask the police to arrest the individual by documenting their reasons.
- Janak Raj Jai, Bail Law and Procedures, Universal Law Publishing, 6th edition, 2015
- Asim Pandey, Law of Practice and Procedure, Second Edition, 2015, LexisNexis.
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