The word ‘bail’ originates from the French word ‘bailer’ which means to deliver. Bail is an important basic structure of the Indian criminal jurisprudence. It is one of the crucial principles that is adopted by the judicial system all over the world, in order to give fair justice. There is no such proper definition of bail in any statutes of the Indian law system. The term ‘bail’ means to release a person from custody irrespective of the fact that it is police custody or judicial custody. The bail is granted in such cases where the investigation or trial; is pending. A person is said to be released on bail when the person is released from custody and entrusted to private custody. Bail is usually granted on an assurance of an amount of money to release the accused.
There are three types of bail:
- Regular bail- It refers to such bail which is granted to an accused in police custody.
- Interim bail- It is granted for a shorter period.
- Anticipatory bail- It is also known as pre-arrest bail. Persons claiming this type of bail are usually in the apprehension of being arrested for any non-bailable offence.
Through this article, we will understand the concept of regular bail and its development throughout the years.
The origin of the bail system can be traced back to approximately 399 BC. It is believed that Plato was the first person who started the concept of releasing a person from detention on the basis of a bond. In ancient India, through various historical books, it was observed that there was the prevalence of the bail system in India during that time. Kautilya’s Arthashastra also shows that pre-trial detention could be avoided. During the Mughal period, the concept of bail was known as ‘Zamanat’ or ‘Muchalaka’,
During the British Rule in India, they introduced the system of bail. It is believed that the modern bail system in India is inspired by that. Today, the provisions for bail are contained in the Code of Criminal Procedure, 1973. Chapter XXXIII of the CrPC deals with the provisions of bail and bail bonds. Since the commencement of this Code, through various amendments, various provisions have been inserted in the chapter of bail and bail bonds. Some of them are:
- Like in the year 2005, the provision for the undertrial prisoners was inserted which stated the maximum period for which they can be detained.
- In the year 2009, the provision for the grant of bail that required the accused to appear before the next appellate Court was inserted.
- In 2018, the notice period was mentioned which needs to be given by the Court to the Public Prosecutor in case of offenses committed under the provisions for rape under the Indian Penal Code.
There is no such proper definition of bail, but the Courts through various judgments have made it evident what beal means. In the case of Sunil Telchand v Union Of India, the Court held that bail means security against which the accused promises to be present during the trial or when the court wants.Before understanding the concept of regular bail, it is important to know what is the purpose of granting bail. The purposes of granting bail are:
- Not to curtail the fundamental rights of the accused
- To allow the accused to prepare for his/her defense
- To conduct his case peacefully
- To prevent the accused from committing any further crime under the influence of other hardened criminals.
At various times through various judgments, different courts of our country have stated the purpose of bail. In the case of Manoj Kumar v State of Himachal Pradesh, 2019, the court held that the purpose of granting bail to the accused is to secure the attendance of the accused in the trial. In another case, Dataram Singh v State of Uttar Pradesh,2018, the court held that the grant of bail is a general rule, as it is believed that a person is innocent until he/she is proven guilty.
Regular bail is granted in those cases where the person is already arrested by the police and is kept in custody. In case of a bailable offense, it is the right of the accused to be released on bail. In such cases, bail may be granted by the police officer or Magistrate. There is no proper definition of a bailable offense. However, as per the Code of Criminal Procedure, 1973, a bailable offense is such an offense that is shown as bailable in the First schedule or by any other law. Bail is granted, by executing a bail bond. A bail bond contains certain terms and conditions which the accused released on a bail needs to follow. Even for bailable offenses, bail can be rejected, if the accused does not comply with the conditions of the bail bond.
Non-bailable offenses are such offenses, where bail is not an inherent right of an accused person. It depends upon the discretion of the Magistrate to grant bail or reject the plea of bail. In non-bailable offenses, the police have no power to grant bail. According to the Code of Criminal Procedure, 1973, there is no such proper definition of non-bailable offenses. However, it is stated that non-bailable offenses are every other offense, which is not stated as a bailable offense in the First Schedule of CrPC or by any other law. If an offense committed has a punishment of death or life imprisonment, then bail cannot be granted by the Magistrate or Judge, except if the arrested person is a woman or a person who is below sixteen years of age or the person is sick or infirm. Bail is also not granted if the accused has not complied with the terms and conditions of the bail bond.
The Section is for those persons who have been accused of any offence which is non-bailable, which means the person is accused of a bailable offence. The Section states that if the person is accused of a bailable offense and is arrested or detained without any warrant given by the officer in charge of the police station during arresting the person, or the accused is appearing before the court, or the accused is brought before the court and is prepared at any time while he/she has been in the custody of the police officer or during any stage of the proceedings before the court to give bail, then the accused must be released on bail.
However, if it is observed by the police officer or the court, that the accused is poor and is unable to furnish any surety, then if the police officer or the court thinks fit, can discharge the person on executing a bond without sureties for his appearance instead of taking bail. Now, a question may arise that when should a police officer or court assume that the accused cannot pay surety. It can be stated that if the accused is unable to give bail within one week of his/her arrest, then the police officer or the court may assume that it can be a sufficient ground in presuming that the accused is poor and thus is unable to furnish the surety. However, as per CrPC nothing mentioned in Section 436(1) shall affect any provisions of Section 116(3) i.e. Provision for inquiry as to the truth of information or Section 446A i.e. cancellation of bond and bail bond.
The Section further states that if a person fails to comply with the conditions of the bail bond regarding time and place of attendance, then the Court may refuse to grant bail in such situations. However, if the person on a subsequent occasion in the same case appears before the Court or is again brought in custody, then upon calling the same person, they have to pay the penalty as directed by Section 446 of CrPC.
This Section is for those persons who have been suspected or accused of committing any non-bailable offence. The Section states that any such person who is accused of any non-bailable and is arrested or detained and at the time of the arrest, the officer in charge of the police station has not shown any warrant, or such person is brought before a court except the High Court or Court of Sessions, then he might be released on bail subject to certain conditions.
The conditions are that such an accused person would not be released if it is observed that there are reasonable grounds that denote that the offense committed is prescribed with a punishment of death penalty or life imprisonment. Another condition is that the accused person would not be released if it has been observed that the offense committed is a cognizable offense and the same accused had been previously convicted of any offense which was punishable for death or life imprisonment or imprisonment for seven years or more, or the same accused had been previously convicted before for two or more times. The cognizable offense as per this section is such an offense that is punishable with imprisonment for at least three years or more but not less than seven years. Bail will also not be granted if such offense is observed to be prescribed with a punishment of life imprisonment, death penalty, or imprisonment for seven years or more unless an opportunity is given to the Public Prosecutor of being heard.
However, the Court might release a person on bail irrespective of the above exceptions, if the accused is under the age of sixteen years or women or sick or infirm. The Court might also grant bail irrespective of the latter condition as mentioned above if the Court thinks it fit due to some special reasons. The grant of bail cannot be refused merely on the ground that the accused may be required for identification by the witnesses during the investigation procedure.
The Section further states that if during any stage of the investigation, or trial or inquiry, the court believes that the offense that the accused was arrested for is not a non-bailable offense, but there are reasonable grounds which shows that further inquiry into his guilt is still required, then the accused subjected to the provisions of Section 446A will be released on bail or at the discretion of Court on the execution of a bond without sureties for his appearance.
The Section further states where the accused has been suspected of committing any offence which is punishable with imprisonment for up to seven years or more or any other offenses committed under Chapter V of Indian Penal Code i.e. offenses against State, Chapter XVI- offenses against the human body, Chapter XVII- offenses against property or abatement or conspiracy or attempting to commit any other offence and the accused is released on bail under Section 437(1), certain conditions will be imposed on the accused by the Court. The conditions are that the accused must comply with the conditions of the bond, the accused further must not commit any offense similar to the offense which he had been accused of, the accused must not make any threat, influence, or promise to any person who is acquainted with the facts of the case in order to prevent that person from disclosing the facts to the Court, and all other conditions required in the interest of justice or necessary will be imposed on the accused
As per Section 437(4), when any officer or court is granting bail to any accused under Section 437(1) and (2), then they must record the reasons in writing for doing so. If the Court feels the need to arrest the person who had been released on bail under Section 437(1) or (2) and commit him again into custody, then Section 437(5) permits them to do so.
Section 437(6) states that if any person is accused of a case that is triable by Magistrate and non-bailable, and has remained in the custody during a period of sixty days, where the investigation has not been concluded within sixty days from the first date fixed for taking evidence in this case, then the accused will be released on bail if the Magistrate feels so and if he is not released on bail, then it should be recorded in writing.
After the conclusion of the trial and before the judgment is delivered, if the court feels that there are reasonable grounds to believe that the accused is not guilty of the offense he/she has been arrested for, then the accused might be released, on the execution of a bond without sureties for his appearance to hear the judgment when it will be delivered.
If any accused person is suspected of committing a non-bailable offence and is denied bail under Section 437, then they can plea for bail under this Section. Under this Section, the High Court and the Court of Sessions grant bail to the accused subject to certain conditions. The conditions are that such person must follow according to the bond executed by him, the accused must not tamper evidence, the accused must not threaten or induce any witness to the case, the accused must not repeat any offense which he is accused of, and any other conditions which the Court thinks fit.
The High Court or the Sessions Court can also turn down or modify or set aside any condition imposed by the Magistrate during releasing the accused. Such Courts may also direct that any person released on bail may be re-arrested or re-taken into custody if Court thinks fit.
Before granting bail a notice must be served to the Public Prosecutor by the Court and give him/her a reasonable opportunity of being heard, and in case of offenses which are triable under Section 376(3), or Section 376AB or Section 376DA or Section 376DB of the IPC, the Court must give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of such application. During the grant of bail for the offenses committed under the mentioned sections, the presence of an informant or any person authorized by him/her is obligatory.
- In India, it is believed that bail is a rule and jail is an exception. This doctrine was given by honorable Justice Krishna Iyer in the case of State of Rajasthan v Balchand. The honorable justice stated that bail is a rule in the justice system, whereas jail is just an exception. A jail should only be taken into consideration when the circumstances are such that it might lead to a sense of unfairness in providing justice. If it can be believed that the accused can intimidate the witness, or tamper any shred of evidence, or can escape from the eyes of police or court, or create any obstacles in the path of justice, or might repeat the offense, then the accused should be taken into custody. In regard to this case, the accused who is now the petitioner for bail was granted bail. He was granted bail because, previously when he was on release he had not committed anything which stands contrary to the bail bond, he also is not an unsocial person who might betray the trust of the court. It was also observed that he was a young man of 27 years, and thus had to maintain his family. Therefore the court granted bail with a bond executed by the accused and with a surety of Rs 5000.
- A landmark judgment was also delivered in the case of Niranjan Sigh and Another v Prabhakar Rajaram Kharote and others, which highlighted the concept of custody in the concept of bail. The issue was that the Magistrate refused to grant bail and put a stay order on the bail application. Thus the accused approached the Court of Sessions for granting bail, which the Court granted. However, an appeal was before the High Court for refusal of the order granted by Sessions Court, but the High Court did not entertain the application, rather imposed certain other conditions on the grant of bail. The case reached the Supreme Court. The issue argued by the petitioner in the jurisdiction of granting of bail is that the accused must fulfill two conditions as per Section 439 of CrPC, but the accused were, at the first hand, not kept in custody, thus there can be no bail as there was no detention in the first place. In this regard, the Supreme Court held that it is correct that one needs to be in custody for pleading bail, but in this case, the situation is different. Here, the accused have surrendered them before the Session Judge. The court further stated that custody as of the context of Section 439 refers to physical control or physical submission of the accused before the court along with submission to the jurisdiction and orders of the court. Thus, the accused being in custody is not only meant when he is kept in jail or produced before Magistrate but also when surrenders before the court. Therefore, the issue argued by the petitioner stands rejected. Thus, through this case, it was denoted that if the accused has physically surrendered before the court which has the jurisdiction of granting bail, then it will be deemed that the accused is in the custody of the court and it will be sufficient enough for the court to entertain the request of bail.
- Article 21 enshrines the Right to Liberty; even the accused persons have this Right. One landmark judgment of the Delhi High court has shown that if there is a situation where bail can be granted, then the accused should not be detained unnecessarily. In 2019, three student protesters were arrested during the protest against the Citizenship (Amendment) Act, 2019. The protest, however, led to huge violence and caused deaths across North-East Delhi. The honorable Justice Siddharth Mridul and honorable Justice Anup Jairam Bhambani decided to grant bail to the three accused persons as they felt that based on the prima facie of the case, it does not seem the charges apply to the acts committed by them.
- Sometimes giving liberty to the accused by granting bail should also be observed whether it is creating an obstacle in the path of fair justice. In a recent judgment, a bench led by honorable Justice Indira Banerjee set aside a bail order granted by the Kerala High Court. It was set aside because the offense committed by the accused was grave and there was the probability of evidence getting tampered with, also the accused had absconded and he could only be apprehended on receiving secret information. The honorable justice also stated that while granting bail the gravity of the offense, reasonable apprehensions, influencing of the witness, tampering evidence should be taken into consideration.
Bail plays an important role in the Indian law system as it highlights the concept of the accused being innocent until proven guilty. The Right to Liberty and Dignity is one of the most important fundamental rights that each person holds. Even the accuseds also have these rights. No person can be denied from enjoying these rights. Thus, the grant of bail upholds the fundamental rights of the accused. The grant of bail should be done while keeping in mind the values of equality, a good conscience, and justice. However, even after a lot of provisions for bail, the number of undertrial prisoners is huge. It is observed that most of the undertrial prisoners are either poor or ill-literate. Thus, amendments should be made to overcome this problem and stricter laws should be made for those persons who take undue advantage of the bail provisions.
Author: Smaranika Sen from Kolkata Police Law Institute.