The term bail is originated from a French word which means “bailier” which means to control or to deliver. And the latin term from “baiulare” which means to bear a burden. “Bail” is not defined anywhere but the provision in respect to bail are provided under the Code of Criminal Procedure, 1973. But bail is attempted to be defined by judiciary. In the case Natturasu v. State, Hon’ble Madras High Court interpreted bail as the process of releasing the accused who is charged under certain law and for certain offences but with the condition that he may attend or present before the court for trial whenever required and to stay within the jurisdiction of the Court.
Bail in the Black’s Dictionary is defined as the releasing of a person from judicial or police custody with the condition that he should appear before the court as and when it is required and submit himself to the jurisdiction of the court. It is the conditional release of accused temporarily for an amount. The bail provision was also there in the Magna Carta which defined it as a free man should not be imprisoned or seized of his rights or should not be deprived of his standing nor any force with be used against him except by the procedure established under the land or by the lawful judgment of his equals. This definition was also referred in the case of Nikesh Tarachand Shah v. Union of India.
“Interim” means for the time being or temporary or provisional. Bail is a release of accused provisionally on certain circumstances in criminal cases where the judgment is still pending. There are mainly three types of bail. First is regular bail that is basically granted to an accused who is arrested and is in police custody and application is filed under section 437 and 439 of CrPC. Second is, Interim bail which is granted for a short duration and granted before the disposal of regular bail or anticipatory bail application. Third is, anticipatory bail which is filed under section 438 of CrPC and can be filed if the person thinks or anticipates that he may be arrested for a non- bailable offence.
WHAT IS INTERIM BAIL?
It is basically for a short duration and before the hearing or final disposal of regular or anticipatory bail application. Interim bail is important as when application for regular or anticipatory bail goes to session court or high court, certain documents are required like charge sheet or case diary from the lower court. So, that they can judiciously decide the application. But this process requires time and the accused has to remain in legal custody until the court gets the documents and can decide the application. But according to interim bail, an accused can apply for it to avoid jail till higher court gets the documents. Thus, interim bail is a temporary bail for a shorter time period during which the higher court can call the documents to make a final decision on the regular or anticipatory bail application. It is granted on some condition. The Interim bail can be extended for more time if the period expires and court thinks fit to extend the time due to special circumstances.
The bail is granted because the famous principle states that there is a presumption of innocence until proven guilty. This principle is the fundamental in the criminal law as well as this is included in the Universal Declaration of Human Rights under Article 11(1). This article states that whoever charged with penal offence has the right of presumed of innocent until proven guilty according to law and he has all the right to get his defence. Not only that Indian Judiciary in the cases Rabindra Kumar Dey v. State of Orissaand Sunil Kumar Sharma v. State (CBI)recognized this principle as one of the three cardinal principles in criminal jurisprudence and it is necessary to considered while granting bail.
In bailable offences, it is mandatory to release the accused on bail at any time while in the non-bailable offence, bail cannot be claimed as a matter of the right and it is the discretion of the court to grant bail and must be decided judiciously. The courts having the powers to grant regular or anticipatory bail can also grant interim bails. When the accused is not released on regular bail and application is still pending, he can get interim bail in special or emergent situation like at the time of death of close relatives or marriage of close relatives.
HISTORY OF BAIL
The bail was first observed in England during 399 BC when Plato obtained a bond to release Socrates. In England, the judges travelled from place to place for the hearing of the cases. Judges used to observe that prison were unhygienic and prisoners had to suffered from that. So, bail concept was introduced. In 1215, the Charter of Rights that is the Magna Carta which provided the right to the citizens that before conviction trial will take place and Statute of Westminster in 1275 divided offenses into bailable and non-bailable. Later on, in 1679, The Habeas Corpus Act gave power to the magistrate to release the prisoners on some surety. Then, the English Bill of Rights was introduced in 1689 and then, subsumed in 1791. It gives protection from the excessive use of bail and contains all the provisions as to bail. Then, in England, in 1976, Bail Act was enacted.
In Britain during medieval times, the circuit courts introduced the system of bail.
In India, Kautilya’s Arthashastra had mentioned that the person should not be detained before trial. So, in India, the concept of bail was there indirectly. During the Mughal period, bail was considered as a ‘Zamanat’. Later on, bail is then governed by the Code of Criminal Procedure, 1973. It is not defined in the code but provisions as to bail are there in the Act. The Chapter XXXIII contains the provisions as to bail and bonds from Sections 436 to 450.
PROVISION FOR INTERIM BAIL
There is no specific provision for interim bail but Chapter XXXIII of CrPC deals with the provisions relating to bail and bonds. It covers section from 436 till 450. Section 437 and 439 deals with the grant of regular bail by Judicial Magistrate First class under section 437 and by Sessions and High Court under section 439. Section 438 of CrPC deals with the grant of anticipatory bail. The jurisdiction lies with the Courts of Sessions and High Court. For grant of interim bail, there is not any specific condition. This is granted at the discretion of the court and in special circumstances and mostly to protect the reputation of the person.
CASES ON INTERIM BAIL
Some important case laws: –
- In the case of Sukhwant Singh & Ors v. State of Punjab, Hon’ble Supreme Court held that the interim bail is a measure especially to safeguard the reputation of an accused. Also, the court has the inherent power to grant bail to a person whose bail application is still pending for disposal.
- In the case Nikesh Tarachand Shah v. Union of India (UOI) and Ors., it was held that grant of bail is a general rule and refusal is an exception exercised carefully as he can defend himself better when he is free. Granting of interim bail is also a general rule and it is given till a final adjudication on the regular bail or anticipatory bail application is disposed off.
- In case Munawar v. State of Madhya Pradesh, the Supreme Court granted interim bail to Faruqui. He was arrested for the charges under section 295A of IPC along with four others. His petition of bail was rejected by the sessions court and the Madhya Pradesh High Court. The Supreme Court had pointed out that the alleging charges are vague and the procedure for arrest laid down in the Arnesh Kumar vs Government of Bihar was not followed. The case registered here does not have punishment more than seven years and on mere allegations, a person should not be arrested. And if reasons are not recorded then, police officer should be liable for action. So, the court directed that he should be released on interim bail.
- Judiciary has attempted and discussed the importance of interim bail and many courts considered it a means to protect reputation of the person till the main application of bail is adjudicated. The scope of interim bail is discussed by the Hon’ble Supreme Court in many cases. In Lal Kamlendra Pratap Singh v. State of U.P. and Ors., it was held that interim bail should be given to the person until the main bail application is adjudicated as when the person is arrested, reputation of person is severely affected by that arrest.
- In the case CBI ACB Kolkata v. Firhad Hakim, Calcutta High Court, Full Bench on 28-05-2021 granted interim Bail. The matter was still in pendency. The interim bail was granted to the TMC ministers in the Narada Scam case.
The Bail was granted on certain conditions:
- The accused shall be released on interim bail on a bail bond of 2 lakhs along with two sureties. The accused have to make themselves appear before the C.B.I for interrogation for further investigation as and when required.
- The accused should not tamper with the evidence or witnesses and will not give any press interview as to the case pending.
- Granting of interim bail is the discretion of the Court but decisions should be sound and guided by law. In the case Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., court held that it should not be arbitrary or vague but must be governed by rule and by humour and fancies. It must be regular. Such determination is necessary at the stage of determining a request for grant of interim bail and it mainly depends on the facts and circumstances of the courts.
- There are many instances where the accused after being arrested obtained the relief of interim bail for limited duration. But at the time of arrest, he evaded arrest and violated the conditions and did not appear before the court. So, many courts had stated that in such cases, bail should not be granted of any types, whether it is an interim bail and should be dealt with severity. In the Phool Chand v. State of Rajasthan, 1983 SCC OnLine Raj, Hon’ble High Court of Rajasthan held that in such cases, such accused cannot obtain remedy under Section 438 CrPC nor under Section 439 CrPC nor interim bail. The Hon’ble Supreme Court in Niranjan Singhv. Prabhakar Rajaram Kharotaand Gurbaksh Singh v. State of Punjab, held that bail should not be granted under section 439 Cr. P.C. until he surrenders himself before the Court nor section 438 Cr. P.C. nor interim bail.
CERTAIN CONDITIONS THAT COURT CAN IMPOSED WHILE GRANTING INTERIM BAIL
- Court can impose certain condition as to not to come in direct or indirect contact with the witnesses. Also, the person has to appear himself for interrogation by the police.
- Nor shall he make any direct or indirect inducement or threat to the person acquainted with the facts.
- Also, he cannot leave the country nor the jurisdiction of the court without the permission of the court.
GROUNDS OF INTERIM BAIL
- On the medical ground: – Interim bail can be granted on the medical ground.
- In Atik Ansari v. The State, Nct Delhi., it was alleged that 2.5 kilograms of heroin were seized from the applicant and he was seeking for interim bail on the ground that his wife is not well. The decision of the Supreme Court in case Hori Lal v. State was considered where the court granted interim bail under the special circumstances. So, the court granted the petitioner interim bail on personal bond of Rs. 20,000/- for two weeks. It was also observed that in cases of NDPS Act, section 32A does not curtail the power of Court to grant interim bail and this was held in the case of Makhtool Singh v. State of Punjab.
- In the case of Poonam v. State, matter was related to the grant of interim bail under Sections 21 and 29 of the NDPS Act. The petitioner was granted interim bail for a period of two weeks on the medical ground. The petitioner’s wife was going to be operated and nobody was there to look after his wife. If interim bail will not be granted, his wife will be deprived the right for being taken care of. In addition to that, petitioner had no antecedent criminal history. So, he was granted interim bail. One of the another case is State Of Bihar vs. Rambalak Singh And Others, where Supreme Court held that conferment of jurisdiction means the power to do all such acts that are essential for its execution. On certain conditions, the High Court can set aside the order and can make an interim order. If the High Court has jurisdiction to give the main relief, then it can also give interim.
- On the ground of marriage of near relatives: – Marriage is one of the special grounds on which interim bail is granted.
- In Dula Metu Panda vs State Of Gujarat, the present application has been filed by the for grant of temporary bail. The application was filed on the ground of marriage. The present application was granted with the condition that on the date of actual release, he has to execute a personal bond of Rs.10,000/ on usual terms and conditions. Then, he should surrender to the jail authority on completion of time period without fail.
- Another case Bhawani Singh vs State Of Haryana whereapplication filed for grant of interim bail to petitioner who was accused under Sections 270, 272, 468, 461, 120-B, 34 IPC and Section 63 of Copyright Act on the ground of attending the marriage of his daughter. He was accused to be involved in the purchase of illicit liquor being manufactured for sale. The application was not opposed on humanitarian ground. The instant petition was allowed and he was released on interim bail.
- There is another case Sukhdev Singh @ Sabu vs State Of Punjab where it was interim bail to the petitioner should be granted who is accused under NDPS. The ground on which the bail is prayed was to attend the marriage of the daughter. The factum of marriage of the daughter of the petitioner has been verified. Seeing the ground and the need to performed ceremonies by the father in the marriage, he was released on interim bail by furnishing personal bond.
- On the ground of death: – Another ground on which interim bail is given is the death of his near ones.
- In Priya @ Priya Ranjan Nayak vs State Of Odisha, the matter was related with the application for interim bail. It was submitted that the mother of the petitioner died at S.C.B. Medical College and Hospital, Cuttack and he is the only son to perform the ceremony of his mother. It is also submitted that the Inspector -in-charge of Mahanga Police Station had verified the averments of the application. Court while observing the documents and facts of the case, released the petitioner on interim bail on furnishing bail bond of Rs.50,000.
- Another case Gulabchand vs State, in which interim bail application has been filed who was in judicial custody for the offence under NDPS Act. He filed application seeking two months on interim bail on the ground that petitioner’s wife was dead and he need to perform her last rites at Haridwar. On behalf of him, it was contended that petitioner’s wife died on 15.06.2020 and ready to furnish guarantee of the parents of the petitioner regarding the surrender back, once the time of interim bail lapsed. Court while regard to the facts and circumstances of the case, held that it is just and proper to grant fifteen days interim bail to the accused under Section 439 Cr.P.C. then, he will surrender back before the concerned Jail Superintendent and the Jail Superintendent is at liberty to impose other terms and conditions for surrender of the accused back.
- In Abu Bakar @ Ashwani Kumar vs The State Nct of Delhi, the interim bail application has been filed under Section 439 Cr.P.C. who was accused under NDPS Act. He raised the ground that accused sister is getting married and in addition to that, besides the petitioner and his elder brother, no one is there even his parents had expired already. It was also contended that earlier also, he was released on interim bail on the ground of death of his mother and surrendered himself on time. Court on the facts and circumstances of the case granted the petitioner interim bail for 2 weeks on a personal bond of Rs.25,000/-. Court also imposed certain conditions on the petitioner not to get in touch with prosecution witnesses and should be available on his mobile number. The petitioner also has to report to the Police station Special Cell, Delhi on every Monday. After the expiry of the time period, he must surrender himself.
The principle presumption of innocence is necessary in criminal cases and protects the life and personal liberty of a person. With this thought, interim bail is granted to the person to protect his reputation. It is a remedy that saved the innocent person from spending his time in jail before trial. It is granted before the regular or anticipatory bail is adjudicated. The interim bail is granted mainly on sureties and bonds that is huge disadvantage for the poor. An innocent person sometime in special circumstances does not receive interim bail due to not having monetary means. Other means should be devised by the court so that every accused has means to take interim bail from the court. It is necessary to be granted as to protect one’s reputation. In addition to that, it is also provided in special circumstances like, on the ground of medical condition or when there is marriage of his son or daughter and he need to be present there to perform marriage ceremonies. In disposing of regular bail, the time is consumed much more and between that period if the accused is kept in the judicial custody or in police custody, accused loses his reputation and he is innocent until proven guilty. For this reason, it is necessary to grant interim bail to the accused.
 Natturasu v. State, 1998 Cri LJ 1762
 Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC
 Legal Service India, Types of Bail In India And Conditions For Grant For Bail, By Qwerty9729 , http://www.legalserviceindia.com/legal/article-1804-types-of-bail-in-india-and-conditions-for-grant-for-bail.html
 Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233
 Sunil Kumar Sharma v. State (CBI), (2007) 139 DLT 407
 Lawctopus, Bail Jurisprudence in India, By Dr Deepali Vashist, March 15, 2021https://www.lawctopus.com/academike/bail-provsions-india/
 Sukhwant Singh & Ors v. State of Punjab, (2009) 7 SCC 559
 Nikesh Tarachand Shah v. Union of India (UOI) and Ors., AIR 2017 SC 5500
 Arnesh Kumar vs Government of Bihar, CRIMINAL APPEAL NO. 1277 OF 2014, (@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
 Lal Kamlendra Pratap Singh v. State of U.P. and Ors., (2009)4 SCC 437
 CBI ACB Kolkata v. Firhad Hakim, W.P.A 10504 of 2021
 SCC online, Interim Bail, https://www.scconline.com/blog/post/tag/interim-bail/
 Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240
 Phool Chand v. State of Rajasthan, 1983 SCC OnLine Raj 124:1983 RLW 294
 Niranjan Singh v. Prabhakar Rajaram Kharota, 1980 AIR 785, 1980 SCR (3) 15
 Gurbaksh Singh v. State of Punjab, 1980 AIR 1632, 1980 SCR (3) 383
 Mondaq, India: Ins And Outs Of Interim Bail: Use And Abuse Thereof, by Varun Sharma and Abhishek Goyal, April 2020, https://www.mondaq.com/india/crime/914262/ins-and-outs-of-interim-bail-use-and-abuse-thereof
 Blog ipleaders, Bail under the Indian legal system, By Ayush Verma, October 19, 2020, https://blog.ipleaders.in/bail-indian-legal-system/
 Atik Ansari v. The State, Nct Delhi., 2006 IV AD(Cri.) (DHC) 303
 Hori Lal v. State, 1997 Crl.L.J 821
 Makhtool Singh v. State of Punjab, CRM-M-12051-2015
 State Of Bihar vs. Rambalak Singh And Others, 1966 AIR 1441, 1966 SCR (3) 314
 Dula Metu Panda vs State Of Gujarat, R/CR.MA/7896/2016
 Bhawani Singh vs State Of Haryana, CRM-M 5172/2016
 Sukhdev Singh @ Sabu vs State Of Punjab, CRM No. M-28407 of 2009
 Priya @ Priya Ranjan Nayak vs State Of Odisha, BLAPL No.237 of 2021
 Gulabchand vs State on 2 September, 2020
 Abu Bakar @ Ashwani Kumar vs The State Nct Of Delhi, BAIL APPLN. 3195/2020
Author: Akshika Agrawal from Jaipur National University.