The Constitution of India grants the individual the Fundamental Right of Freedom and Liberty and thus the application of Bail in the legal system for the individuals accused is a part of their fundamental rights which should be protected and preserved. The individuals have the rightful authority to resort to the application of Bail under the ambit of the fundamental right of freedom and liberty to be granted the liberty under jurisdictional powers until the accused is proved guilty in the court of Law. The Article 21 of the Indian Constitution safeguards the rights of the accused in terms of fair judicial proceedings.
Justice Krishna Iyer remarked that the subject of bail:-
“…belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process.”
The Legal System grants a non-permanent release or respite to an individual from police custody. The procedure of Bail provides an individual a temporary liberty from official custody in a prison for offences concerned. It acts as a security lodge for an individual where the individual is released with a promise to appear in the court as and when required. A Bail is granted to an individual most commonly before the trial is conducted and the individual often deposits an amount of money or property for safe-keeping as a guarantee to appear in the Court of Law.
A Bail is a pre-suit restraints on an individual to maintain the sanctity of the judicial proceedings. The individual accused of cognizable or incognizable is granted Bail with due procedure to be free from the clutches of the police custody. It highlights the idea of “innocent until proven guilty”. It is accorded to an accused in order to ensure their presence in the trial. The non-failure of appearance on the stipulated day of hearing by the accused renders the Bail invalid and the accused is liable for misconduct and violating the decorum of the Judicial System. The provisions of Bail are stated in Section 436 to 450 of Code of Criminal Procedure, 1973.
Two Essential Elements-
In order to understand the concept, the essential elements are the two forms of Offences-
– An offence is a violation or infringement of rights of people and the nature is as such that it completely defies the law and results in menace to the people at large. Section 2 (n) of the Code of Criminal Procedure, 1973 defines offence as, “offence means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattletrespass Act, 1871 (1 of 1871).”
- Bailable Offence- A Bailable offence is a subject matter of the application of the rights of the accused. It refers to offences where the accused is entitled to be granted a Bail either by the Police or by the Court of Law. The Bailable Offences include crimes which are not heinous and grave in nature. In such offences, the Court generally grants the punishment of less than three years. Section 2 clause (a) of the Code of Criminal Procedure, 1973 stipulates, “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force.“
- Non-Bailable Offence- A Non- Bailable Offence does not hold the privilege of necessary grant of Bail. Here, the Offences are grave and dangerous in nature and follow a punishment of three years or more. The accord of being granted a Bail is no more a right in Non-Bailable Offences. These offences are non-bailable, which means the accused cannot be temporarily released on account of the grievous crime committed and that non-bailable offences are not mentioned in the First Schedule of the Code of Criminal Procedure, 1973.
Types of Bail
The Code of Criminal Procedure, 1973 provides three types of Bail in India in lieu of the subject matter-
- Regular Bail– When an individual commits a non-bailable and a cognizable offence that is grave and heinous such that the police does not require an official warrant to arrest or put the accused in the custody until the conclusion of the trial, in such cases the Sections 437 and 439 of the Code of Criminal Procedure,1973, specifies the release of the accused from the police custody. The accused can approach a Trial court or a Sessions Court or a High Court or even the Supreme Court for filing the application of a Regular Bail from the police custody on the basis of which the Court may or may not grant the bail. A Regular is applied for, after the arrest of the accused is made by the Police. The Regular Bail is granted in pursuance of the due compliance of the accused to be present during the trial hearing and sessions. Section 437 of the Code of Criminal Procedure, 1973, postulates, “When bail may be taken in case of non-bailable offence”, while Section 439 states the, “Special powers of High Court or Court of Session regarding bail.”
- Anticipatory Bail– The Anticipatory Bail is applied for when the individual apprehends the arrest in a non-bailable offence by the police. An Anticipatory Bail provides an individual a course of action to avert police custody by filing an application for the grant of an Anticipatory Bail. The essential element in such a type of Bail is that the accused has to file the application for the grant of an Anticipatory Bail before the arrest is made. An Anticipatory Bail granted by the Sessions or The High Court. The individual is not required to report a First Information Report when filing for an Anticipatory Bail. Section 438 of the Code of Criminal Procedure, 1973 provides for the provision for an Advance Bail. Section 438 briefs about “Direction for grant of bail to person apprehending arrest-When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”
- Interim Bail– Interim Bail is a temporary Bail granted to an individual in case of pendency of an application for the grant of an Anticipatory or a Regular Bail. It is a short term respite from the police custody till the time the application of the anticipatory or a regular bail is granted. An Interim Bail is dependent on the time for the grant of other forms of bail but it can be extended under certain said conditions of the Court. If the period of the Interim Bail lapses before the other Bails could be granted, then the individual is taken under custody.
Highlights of Regular Bail
The Regular Bail provides an individual a respite from police custody by filing an application for a regular bail with a guarantee to diligence and compliance on part of the accused. Section 437 of the Code of Criminal Procedure Act, 1973 discusses the powers of the judicial powers of the Magistrate in granting the regular bail in cases of non-heinous and not so grave crimes. The release of the accused is based on the discretion of the Magistrate to grant the regular bail or not. Once the formalities for the regular bail are completed, the accused is granted the Regular Bail. The Magistrate intimates the decision to the Public Prosecutor for the implementation of the grant of Regular Bail. The Regular Bail is granted for the offences for which the punishment is not inclusive of either imprisonment of life or death.
- There exist certain duties of the Court while granting the Regular Bail:
- Balance of interests and views of both the victim and the accused.
- Protecting the society from the mishappenings of the accused.
- Preservation of the motto, “innocent until guilty”.
- Conditions imposed upon by the Court of Law for the grant of Regular Bail-
- Duly attending the proceedings of the case by the accused.
- The accused must ensure that no crime or offence is committed in consonance to the crime for which the accused is granted bail.
- Lastly, the accused must not attempt to hamper with facts of the case or even hamper the piety of the judicial proceedings through unfair practices.
The legal provisions in relation to a Regular Bail are stipulated as follows in the Code of Criminal Procedure, 1973-
- Section 436– It deals with the Bail appeals in Bailable offences. It includes under its ambit the individuals who are accused of the offences other than non-bailable offences along with three important condition which are-
- The Police have arrested the accused without a warrant.
- The accused is to brought in the Court of Law, and
- The readiness of the accused to be presented before the Magistrate before the Bail is granted.
- Section 436 A– It was introduced through the Amendment in 2005. It explains that in case of Bail, the Court after hearing the arguments of the Public Prosecutor may grant a Bail to the accused instead of a personal Bond with or without sureties.
- Section 437– It details about the cases when the Bail is granted in Non-Bailable offences. It puts forward that an individual accused of commission of a crime or a non-bailable offence arrested without a warrant by the Police and when brought to a Court of Law can be granted Bail only when
- The accused is below the age of 16 years.
- The accused is sick.
- The accused is a woman.
- The Court is satisfied to grant bail for some special reason.
- The identification of the accused is not a mandatory element for granting bail, when the accused is empowered to get a Bail with the guarantee to comply with the directions of the court.
However, there are certain exceptions in the Section 437 for the grant of Regular Bail to an accuse, which are-
> the accused shall not be released when there is practical reason to believe that the accused is guilty of the offence punishable with death or imprisonment of life.
> the accused shall not be granted the Bail when the accused has previously committed the same offence with punishment of seven years or more or either death.
The Section 437 subsection (2) also postulates that a Regular Bail can be granted by the Court of Law when there are evident grounds to be consider that there is a need for a further enquiry to examine the guilt of the accused and that the Court is not confident to rely on the present facts to believe that the accused has committed a non-bailable offence.
- Section 439– It prescribes the special powers of the High Court of The Court of Sessions where a Regular Bail can be granted to the accused under conditions mentioned in Section 437 subsection (3) which states, “When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail”. Section 439 also gives the jurisdiction to set aside or alter any condition put forward by the Court of Law while granting the Bail.
- Rasiklal v. Kishore Khanchand Wadhwani 20th February, 2009– The Supreme Court of India held that the right to file an application for a Regular Bail is absolute and cannot be subject to infringement. It stated that when the official paperwork is complete, the police authority or the Court has to grant the accused a Regular Bail. The Court grants the bail in lieu of a deposit guarantee and the adherence to certain conditions laid down by the Court. The Court held that, “Order of granting bail is judicial act and not ministerial act and thus reasons must form the basis for any order on bail application.”
- Aftab Ahmed v. State of Uttar Pradesh, 1990– In this case it was held that Section 436 of the Code of Criminal Procedure, 1973 entitles the Court to grant a Regular Bail to an accused in Bailable offences without a surety. The Court can grant a Regular Bail on the basis of the Executive Bond which enumerates certain acts which the accused has to abide by and the failure to do would result in monetary penalty.
- Vaman Narain v. State of Rajasthan, 2009– In this case it was rightly upheld that the granting of the Regular Bail under bailable offences is under the ambit of the fundamental and legal right of the accused. The accused has the right to be granted Bail for the commission of Bailable offences and that police officials have no power to detain the accused after the grant of Bail by the Court of Law. Such conduct would amount to wrongful restrainment of the accused.
Evolution of Law with the growth of Regular Bail
The dynamics of the Bail system in India is mechanized through the Code of Criminal Procedure 1973. The Indian Judiciary System is based on the presumption, “innocent until proven guilty”. The functionary role of Regular Bails in the Indian Legal System is to preserve the sanctity of the rights of the accused and the decorum of the judiciary in exercising and respecting the liberty of accused. The Law evolved in 399 B.C. when Plato attempted at the formation of a bond for the release of Socrates. The modern Indian Legal system has evolved with the Regular Bail structure of England despite a striking contrast in the socio-economic pattern of both the countries.
The Legal System is nonchalant to the financial constraints suffered by the families which are in the marginalized section and have to afford the exorbitant prices of the procedure of the Regular Bails. However, the growth of Regular Bails has evolved Law as a means to protect the Fundamental Rights of those detained in the Police Custody. The process of Bail reminds the accused the importance of obedience to the Law and the necessary compliance to it. The Law evolved in a manner as to upheld the principles of democracy and constitutional, fundamental and legal rights of the individuals in a country accused of certain offences.
Thus, the Regular Bail system provides a remedy to the accused to live an innocent life under certain conditions until proven guilty. The Regular Bail guarantees the autonomy of the accused in exercising the rights in consonance with the maintenance of the sanctity of the Judicial System.
 Vidhan Maheshwari, “Right to Bail as a Constitutional Right’,
 W. J. Stewart, “Collins Dictionary of Law”, 2006.
 Code Of Criminal Procedure, 1973.
 Chikirsha Mohanty, “What is a Bailable and non-Bailable Offence in India?”, 2021.
 Ayush Verma, “Bails under the Legal System”, 2020.
 John, “Difference Between Regular, Anticipatory and Interim Bail”, 2017.
 Rakesh R. Singh, “Bail is Rule, Jail is Exception”, 2020.
 Akshita, “Types of Bail under CrPc”, 2017.
 Suryansh Singh, “Brushing up Provisions related to Bail”, 2019.
 Rasiklal v. Kishore Khanchand Wadhwani, (2009) 4 SSC 446.
 Aftab Ahmed v. State of Uttar Pradesh SCC 1990 Cri Lj 1636.
 Vaman Narain v. State of Rajasthan SCC 2009 (Cri) 745.
 Aparna Chaki, “Bail In India”, 2017.
Author: Devanshi Srivastava from NLUJA, Assam.