The foundation of a safe state lies in the fact that how efficiently the situation of “Law & Order” is maintained in it. One way to ensure such effective maintenance of law & order in the state is to punish the person who has committed a crime. But punishment upon the accused cannot be inflicted unless he has been tried by the court in just and fair manner. Further, in criminal jurisprudence one of the cardinal principles is that the accused is presumed innocent until he is found guilty after the conclusion of a trial. Therefore, it would be unjust & contrary to the principles of the criminal justice system, if an accused would be kept detained during the pendency of criminal proceedings against him.

Such detention if allowed would mean that though he is presumed to be innocent till proven guilty, yet he would be subjected to psychological & physical deprivations of jail life.[1] In such a situation, the whole purpose of the fundamental principle of, ” presumption of innocence of a accused” would vitiate.

Thus, to safeguard the accused from such unreasonable practices, the provision of “Bail” is provided in the criminal law. ‘Bail’, simply means, “to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court”.[2] Bail aims at ensuring the presence of the accused at his trial but without unreasonably and unjustifiably interfering with his liberty. But the law of bail has to strike balance between two circumstances; on one hand, where the arrested person, if released on bail, is likely to put obstructions to fair trial by destroying evidences or likely to commit more offences during period of release then it would be improper to release such person on bail. On the other hand, where there are no such risks involved in the release of the arrested person, it would be cruel and inappropriate to deny him bail.[3]

Definitions

In India, the provision of bail is governed by Cr. P.C under Chapter XXXlll (S.436 – S. 450); but the term ‘bail’ has not been defined in it. It only categorizes offences as “bailable and non bailable “.

The Black Law Dictionary defines Bail as a security such as cash or bond especially security required by a court for the release of a prisoner who must appear at a future date.

Webster’s Law Dictionary defines Bail as a temporary release of a person in exchange for security given for the prisoner’s appearance at later hearing.

Categorisation of Offences

Bailable offences

According to sec 2(a) Cr. P.C, “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. In bailable offences, grant of bail is a matter of right. It means if a person accused of a bailable offence is arrested or detained, he has a right to be released on bail following the furnishing of a bail bond with or without surety.

Section 436 Cr. P.C covers all cases of persons accused of bailable offences, cases of persons though not accused of any offence but against whom security proceedings have been initiated under Chapter VIII of the Code, and all other cases of arrest and detention which are not in respect of any non-bailable offences.[4]

In Talab Haji Hussain v. Madhukar Purshottam Mondkar[5], it was held with respect to bailable offences that as soon as the accused person is prepared to give bail, the police officer or the court, before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable.

In Dharmu Naik v. Rabindranath Acharya[6], it was held that refusal to grant bail in contravention of sec 436 will make the detention illegal and the police officer causing such detention may be held guilty of wrongful confinement u/s 342 IPC.

Further if a person who has been granted bail u/s 436, has broken the conditions of his bail bond while being on release, shall not as of right be entitled to bail when brought to court on any subsequent occasion even if offence is bailable.[7]

Non-bailable offences 

As per sec 2(a) Cr. P.C “non-bailable offences” means all offences other than bailable. In general, all serious offences, i.e offences punishable with imprisonment for three years or more, have been categorised as non bailable subject to certain exceptions.

Non bailable offence does not mean that the person accused of such offence shall not be released on bail; it only means that here grant of bail is not a matter of right of the accused instead it is a privilege to be granted at the discretion of the court but such discretion must be free from arbitrariness.

Section 437 provides the circumstances in which court can grant bail in non bailable offences. But a person shall not be so released if he is accused of offences punishable with death or life imprisonment; person previously convicted of offences punishable with death or life imprisonment or imprisonment for seven years or more; person previously convicted on two or more occasions of offences punishable with three or more years.[8]

However, if such above person is under sixteen years or a woman or sick or infirm or if the court feels that it is just for any other special reason, then even such person can be granted bail by the Court[9]but only after giving an opportunity of hearing to public prosecutor.[10]

In Meenu Dewan v. State[11], it was held that the mere fact that the accused was a woman would not entitle her for bail under the proviso to sec 437(1) Cr. P.C. The nature and gravity of the offence and heinousness of such offence also have to be considered. If offence affects vital interest of society & has adverse effect on social & family life of victim then bail cannot be granted.

Further while granting bail for non-bailable offence the court shall impose certain necessary conditions upon the accused to be mandatorily followed by him otherwise the court shall commit him to custody and his bail shall stand cancelled.[12]

Types of bail

There are following types of bail in practice in India:

Regular Bail

Regular Bail is the bail given to the accused after he has been arrested by the police. To get regular Bail from Magistrate’s Court, an application is filed u/s 437 and to get regular Bail from Session’s Court or High Court, an application is filed u/s 439 Cr. P.C.

In Rasiklal v. Kishore s/o Khanchand Wadhwani[13] the Supreme Court held that the right to bail for bailable offences is an absolute and in-defeasible right and no discretion can be exercised as the words of s. 436 Cr.P.C are imperative and the person accused of an offence is bound to be released as soon as the bail is furnished. It further observed that there is no need for the complainant or the public prosecutor to be heard in cases where a person is charged with a bailable offence. Moreover, the court has no discretion to impose any conditions except to demand security.

In Vaman Narain Ghiya v. State of Rajasthan[14] also it was held that the court has no jurisdiction to impose Anu conditions while granting bail u/s 436 Cr. P.C.

 In Gurcharan Singh v. State (Delhi Admn.)[15] The Court took the view that in non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub-section (3) of Section 437 Code of Criminal Procedure if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) Code of Criminal Procedure and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This, will however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.

Default Bail

Section 167 Cr. P.C clearly provides that during investigation, apart from police remand of 14 days, an accused can be kept in judicial custody for a maximum of 90 days in case of accusation of offences punishable with death, life imprisonment or imprisonment for 10 or more years; and period of judicial custody is maximum of 60 days in case of accusation for any other offences having less than 10 years of imprisonment. In cases where even after expiry of such 90 or 60 days as the case may be, the police are not able to file an investigation report then the accused shall be entitled to be released on bail if he is prepared to furnish the bail. Thus, Default Bail is the right of the accused to be released on bail when police investigation is not completed within specified period. It is also known as Statutory Bail.

In Surajmal kanaiyalal Soni v. State of Gujarat[16],it was held that bail under the proviso to section 167 would, however, not be available to the accused who makes the application on the submission of the report after 90 days.

In Gurmit Kaur v. State of Punjab[17], it was held that, if an application is made after 90 days but before the submission of police report, the accused may be granted bail.

In Bikramjit Singh v. State of Punjab[18], the apex court held that the right of the accused to be released on default bail is not merely a statutory right but also a fundamental right as well being the part of procedure established by law under article 21 of constitution of India.

Interim Bail

There is no specific provision in Cr. P.C dealing with interim bail in particular. Interim Bail, as the term itself suggests means a bail for the short period of time. It is granted by the court during the pendency of the main bail application applied either for regular or anticipatory bail which may require a longer time to decide.

In Lal kamlendra Pratap Singh v. State of U.P.[19], it was held by the Supreme Court that in appropriate cases interim bail should be granted pending the disposal of main bail application, since arrest and detention of a person can cause irreparable loss to a person’s reputation. The court held that “the court hearing the regular Bail application has got inherent power to grant interim bail pending disposal of main bail application. The court considered interim bail in the light of article 21 of constitution of India which protects the life and liberty of every person. The court stated that when a person applies for regular bail then the court concerned ordinarily lists that application after a few days for hearing so that it can look into the case dairy which has to be obtained from the police authorities and in the meantime the applicant has to go to the jail, here interim bail comes into picture.

Anticipatory Bail

The term “anticipatory bail” is not defined under any of the provisions of Cr. P.C. Section 438 only makes a provision enabling the superior courts to grant anticipatory bail, i.e., a direction to release a person on bail issued even before the person is arrested.

In Balchand Jain v. State of M.P.[20], it was held that the term “anticipatory bail” is a misnomer as it is not bail presently granted in anticipation of arrest. When the court grants “anticipatory bail”, what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested, and, therefore, it is only on arrest that the order granting “anticipatory bail” becomes operative.

As per sec. 438(1) any person who has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail.

In Hajalisher v. State of Rajasthan[21], it was held that though an application for “anticipatory bail” can be made to the High Court or Court of Session; however, normally it is to be presumed that the Court of Session would be first approached for the grant of “anticipatory bail” unless an adequate case is made out for straightaway approaching the High Court directly without first coming before the Court of Session.

In Gurbaksh Singh Sibbia v. State of Punjab[22], it was held that S.438 does not require that the offence in respect of which the “anticipatory bail” is asked for has been registered with the police. The filing of FIR is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

In Rajeevan v. State of Kerala[23], it was held that though the applicant in order to succeed must make out a case for the grant of anticipatory bail under Section 438, that section does not require him to make out a “special case”.

In Gurbaksh Singh Sibbia v. State of Punjab[24], it was held that the discretion in granting “anticipatory bail” is undoubtedly to be exercised with care and circumspection, but then it will not be correct to say that the power to grant anticipatory bail must be exercised in exceptional cases only.

Further as per sec. 438(2), the High Court or the Court of Session, while granting anticipatory bail may impose conditions as it thinks fit.  The conditions mentioned in that sub-section are only illustrative and the court may impose other conditions, if it thinks fit, with a view to strike a balance between the individual’s right to personal freedom and the investigational rights of the police.

In Gurbaksh Singh Sibbia v. State of Punjab[25], the apex court held that a ” blanket order” of anticipatory bail should not generally be passed and that the court which grants anticipatory bail must take care to specify the offence or Offences in respect of which alone the order will be effective.

Section 438 does not require that a notice be given to the Public Prosecutor before the application for anticipatory bail is considered by the court and legally it is possible to pass an exparte order of anticipatory bail. But ordinarily an order of anticipatory bail should not be passed without issuing notice to the prosecution and giving it an opportunity to oppose the application for anticipatory bail.”

Furthermore, there is nothing in Section 438 to suggest that the order of anticipatory bail shall be effective up to a particular stage or till the filing of the challan. As soon as a person is enlarged on bail on the directions of anticipatory bail order, it would be deemed by implication as if the bail was granted under Section 437(1). Consequently, the bail shall be effective till the conclusion of the trial, unless it is cancelled by the court taking action under Section 437(5) or under Section 439(2) of the Code on the grounds known to law, and filing of challan in the court is by itself no ground to cancel the bail.

In Gurbaksh Singh Sibbia v. State of Punjab[26], the Supreme Court therein observed, “Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.

With regard to cancellation of anticipatory bail, it has been held that when Section 438 permits the making of an order and the order is made for granting anticipatory bail, it is implicit that the court making such an order is entitled upon appropriate consideration to cancel or recall the same.

Bail after Conviction

It refers to the powers of the appellate court to grant bail after the accused has been convicted. Section 389(1) & 389(2) talks about grant of bail by the appellate court when the criminal appeal has already been filed by the convict and it is being pending before the court. Sec 389(3) provides that the trial court on being satisfied can grant bail to convict to enable him to file criminal appeal against the said conviction. But such bail is for limited period, i.e., till the appeal is filed and once the appeal gets filed it is for the appellate court to decide the bail.

The question whether the appellate court while exercising its powers u/s 389 can suspend the execution of sentence as well as the conviction pending an appeal preferred by a convicted person has been answered in affirmative.[27]

Irrespective of whether the offence is bailable or non-bailable the release of the convicted person on bail is entirely at the discretion of the appellate court but such discretion has to exercises judicially.[28]

Reasons Behind Ineffective Implementation of Bail laws

Though many provisions regarding bail have been provided in the criminal law of our country, yet getting a ‘bail’ from the authorities or the courts have been quite an impossible task for at least many, if not for all.

The SC has time and again reiterated that “bail is the rule and jail is an exception”, but the ground reality seems different where “Jail has become a rule and bail has become an exception”.

There are following prominent reasons behind poor implementation of bail laws in India:

1. Hasty and Indiscriminate Arrest

In our criminal system the practices that is being followed is that police tend to arrest persons and keep them in custody even in cases involving much city offenses are in more appropriate words they are mostly bailable offenses but still the person is not being able to avail ‘bail’ as most of them are too poor to furnish bail amount or have no one to stand as a surety for them.

The SC from time to time has laid down guidelines against these arbitrary exercises of power of arrest by police.

In Joginder Kumar v. State of U.P.[29], the Court reiterated that merely because an arrest can be made because it is lawful does not mandate that arrest must be made. The Court stated that “art distinction must be made b/w the existence of the power to arrest and justification for exercises of it. The police officer must be able to justify the arrest apart from his power to do so. The court held that, “no arrest should be made without a reasonable satisfaction reached” after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to affect arrest.

The legislature had also stepped in the curb hasty and indiscriminate arrests by the Act of Criminal Procedure code (Amendment) Act, 2008. It inter alia, provides that a police officer must mandatorily record his reasons in writing for every arrest and non-arrest.

The SC issued detailed directions to prevent unnecessary arrest and detention in Arnesh kumar v. State of Bihar[30], where among other things the court directed that authorizing detention by the judicial magistrate without recording the reason, that concern judicial magistrate shall be liable for departmental proceeding by HC

In Siddharth v. State of U.P.[31] also court held that arrest can be made necessary only if the crime is heinous, or if there is a possibility that the accused may absound. If arrest is made a routine practice, then that would lower the self-esteem of the accused, and would affect his reputation and personal liberty.

But despite such repeated guidelines by SC, the evil of arbitrary arrest still persists in society on large scale, thus, becoming the first element of hindrance is proper implementation of bail laws.

• Monetary Surety Bonds

The second & the most criticising factor in our bail system is that grant of bail depends on whether accused is able to furnish ‘money’ or ‘any property’ as bail bond or not. And where he cannot do so, he may call persons to stand as a surety for him but again the ‘surety’ needs to be such a person who can when required furnish a bond for some money or property as determined by concerned judge. Thus, this whole system of bail discriminates against poor, who, though may have commit a petty offence but still is unable to get bail; and on the other hand, a person who is financially sound can get bail by furnishing required Surety for bail bond even if offence committed by him may be more serious.

The SC in a State of Rajasthan v. Balchand[32] laid down that while the system of pecuniary bail has a tradition behind it, it may well be that in most cases not monetary suretyship but undertaking by relations of the petitioner or organisation to which he belongs may be better and more socially relevant.

The Court while highlighting the evils of present mechanism of bail in Moti Ram v. State of Madhya Pradesh[33], quoted that,” The principal purpose of bail is to ensure that an accused person will return for trial if he is released after arrest. How is that purpose met under the present system? The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial. He does not stay in jail because he is guilty.He does not stay in jail because any sentence has been passed.He does not stay in jail because he is any More likely to flee before trial. He stays in jail for one reason only-because he is poor…”

Though code of criminal procedure amendment act 2005 has brought a provision where police on being satisfied that the person is indigent can grant him bail on his own bond without any sureties but till now this provision has not compiled with wholly. Had it been complied with, many of under-trial prisoners would have released.

• Judicial Discretion

Apart from above factors, the attitude of the sub-ordinate courts and even of HCs to mechanically reject ‘bail applications’ without going into its merits has also been crucial factor why most people are behind prisons during whole trial even in minor offences.

The SC in recent case of Arnab Goswami v. State of Maharashtra[34] observed that the high courts and the district courts have to enforce the principle of ” bail being rule and jail being exception” in practice, rather than leave it to the Supreme Court to intervene. The court further observed that “Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Therefore, Courts must be alive to the situation as it prevails on the ground in the jails and police stations where human dignity has no protector.” The apex court after acknowledging that there are 91,568 bail applications pending before the bail applications pending before the high courts in India and 1,96,861 bail applications pending before the district courts (according to data from the National Judicial Data Grid), they urged the judges in charge of these courts to utilise tools at their disposal to address this pendency as it quoted that “Liberty is not a gift for the few.”

Supreme Court’s Recent Directives

The apex court very recently i.e., on July 11, 2022 gave a landmark judgement in Satender Kumar Antil v. Central Bureau of Investigation[35]. In this case, the division bench of SC consisting of Justices S.K kaul & M.M Sundresh laid down fresh guidelines regarding ‘arrest and bail’.  

These are as follows:

The court in the present case said that the investigating agencies and their officers are duty bound to comply with the mandate of sec.41 & 41A. Any non-compliance of these provisions would entitle the accused for grant of bail. The court mentioned that these guidelines are in addition to the earlier ones laid down in Arnesh Kumar v. State of Bihar.

The court stated that any dereliction on the part of the agencies has to be brought to the notice of the higher authorities by the court followed by appropriate actions.

Regarding bail, the court urged Government of India to consider the introduction of a separate enactment for bail citing the example of seperate Bail Act, 1976 of U.K which gives a ‘general right’ of bail and aims to reduce the number of inmates to prevent clogging of jails.

The court clearly stated that there need not be any insistence on formal bail application while considering the applications u/s 88, 170, 204 & 209 of the code. It implies that the court on its own direction can grant bail to accused in some situations.

The court gave a clear direction that bail applications ought to be disposed of within period of two weeks except where the provisions direct otherwise. An intervening application shall be an exception to it.

For disposal of anticipatory bail, court directed that the same needs to be disposed of within a period of 6 weeks with an exception of intervening bail application

It directed high courts to identify under-trials who are unable to comply with bail conditions and take appropriate actions to facilitate their release by adhering to sec 440 Cr. P.C. Mandatory compliance with sec.436-A Cr. P.C is also directed.

The court instructed the Central Government and the State government to take necessary steps from time to time to comply with the above orders and also to consult with HCs to look into the need of special courts.

Conclusion

Bail is one of the most crucial elements of criminal justice system. Under Indian Criminal Law, ‘Bail’ is not only a statutory but fundamental right as well u/s 167(2) Cr. P. C. Despite this, getting a bail has been a tough task for the individuals resulting in violation of their right to liberty under article 21 of the Constitution. Our bail system suffers from many infirmities as discussed in the article above such as arbitrary arrest; monetary requirements for getting bail and mechanical rejection of bail applications without adequate considerations. Though with time, both the Supreme Court and the legislature has come up with directions and provisions respectively to lessen the miseries of an accused especially that of poor ones yet there is a long road to walk in order to create a bail system which can cater to the present needs of the country seeing the number of under trail prisoners that are there in the jails. In this current scenario, the recent verdict of the apex court has come as a ray of hope and if implemented in totality it will surely initiate the much-needed change in our criminal justice system.

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[1] R.V. Kelkar’s Criminal Procedure, 6th Edition, 2016

[2] Vaman Narain Ghiya v. State of Rajasthan,( 2009) 2 SCC 281

[3] Sanjay Chandra v. CBI , (2012) I SCC 40

[4] R.V. Kelkar’s Criminal Procedure, 6th Edition, 2016

[5] AIR 1958 SC 376

[6] 1978 Cri LJ 864 (Ori).

[7] Sec 436(2)

[8] Sec 437 (1)

[9] Proviso (1) to sec 437(1)

[10] Proviso (4) to sec 437 (1)

[11] 2010 Cri LJ 2911 (Del)

[12] 437(5)

[13] AIR 2009 SC 1341

[14] ( 2009) 2 SCC 281

[15] (1978) 1 SCC 118

[16] 1989 Cri LJ 1678 (Guj)

[17] 1989 Cri LJ 1609 (P&H)

[18] Cri. No 2933 of 2020

[19] Cri appeal no. 538 of 2009

[20] (1976) 4 SCC 572

[21] 1976 Cri LJ 1658 (Raj)

[22] (1980) 2 SCC 565

[23] (2009) Cri LJ 1031 (ker)

[24] (1980) 2 SCC 565

[25] Ibid

[26] Ibid

[27] V. Sundararami Reddi v. State, 1990 Cri LJ 167 (All)

[28] Khilari v. State of U.P. (1978) I SCC 579

[29] AIR 1994 SC 1349

[30] Cri appeal no. 1277 of 2014

[31] Cri appeal no. 838 of 2021

[32] 1977 SCC (4) 308

[33] 1978 SCC (4) 47

[34] Cri appeal no. 742 of 2020

[35] App. No 1849 of 2021

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Author: Ishita Rathore, B.A. LL.B. student at Teerthanker Mahaveer University.

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