Bail is the most common term in the context of criminal cases. Whenever a person is made an accused in a case and the person is imprisoned while pending Investigation, Inquiry and Trial, then the term bail is most commonly used for that accused.
The term bail is provided in Chapter 33 of the Criminal Procedure Code 1973 (CRPC) but there is no definition of the bail in any of the provisions of Criminal Procedure Code 1973.
Whenever an accused is kept in prison, there is an investigation and trial or appeal proceedings pending on him. In such a situation, it is not decided that if a person is made an accused in a case, then that accused will be acquitted or convicted.
To avoid this injustice, the accused can be granted bail under various sections of Chapter 33 of Criminal Procedure Code, 1973. Bail means such security to ensure the attendance of the accused in further proceedings, upon which the accused is released in case of pending investigation or trial.
In the case of Govind Prasad v. State of West Bengal 1975 Criminal Law Journal 1249 Calcutta - Court states that Bail includes a condition in the bond that he shall appear before the court on the date and time specified in the bond.
On giving security under bail, any person frees himself from detention during proceedings pending against him and freely moves in society like an ordinary citizen. The provision of bail is based on the concept that there should be no commissioned and unjustified interference in the liberty of any person. Under all sections of this chapter, detailed provisions were made regarding release on bail, revocation of bail, removal of the bond of power to issue bail by the High Court and the Sessions Court, etc.
A person against whom there is only the possibility or apprehension that he may have committed a crime may plead for bail by appearing directly before the court. Until he has actually been arrested or an arrest warrant has been issued against him. The possibility of his arrest on the basis of an arrest warrant may not have arisen.
When bail can be given
If the offense is bailable, the accused has the right to be released on the bail. This type of bail may be rightfully sought by accused either from the police officer or the court. The court and the police officer have to give bail in the offenses in which the accused has the right to the bail.
Which offences of the Indian Penal Code 1860 (IPC) are bailable are provided in the First Schedule to the Code of Criminal Procedure 1973.
The following four sections of Chapter 33 of the Criminal Procedure Code 1973 (CRPC) relating to the provisions of bail are special clauses.
Section 436 of CrPC
This section of CrPC provides that where the accused of a bailable offence is arrested and detained, he can claim to be released on bail as a right.
This section applies to all such cases in which the accused is guilty of a bailable offense or is a person who has not committed any offense but a security action has been taken against him under Chapter 8 of the Code.
This section shall also apply in case of any other arrest or detention provided that it is not related to any non-bailable offense. When a person who is accused of a non-bailable offense is arrested and detained without warrant by the officer-in-charge of the police station or appears before the court, he will be released on bail. The officer in charge of the police station or the court may release the person from custody by executing a bond with securities or without it, instead of releasing him on bail.
In the case of Virender v. State of Rajasthan 1988 Criminal Cases 431, it has been ensured that when the accused is released on bail under Section 436 in the case of prosecution of a bailable offense, after his release, a non- bailable offense further compounded against him by police. In that case the bail issued cannot be revoked. The bail can only be revoked under section 439 (2) or 437 (5).
In case of Gudi Kanti Narasimhulu v. Public Prosecutor Andhra Pradesh, 1978, the Supreme Court gave some guidelines on bail in a special case.
1) - The decision of whether or not to grant a bail by the Magistrate should be made on the basis of reasonableness, taking prior precautions.
2) - As a result of denial of bail, the accused is deprived of his right to liberty, therefore, it should not be used by the magistrate for criminal purposes but keeping in mind the interests of both the accused and the society.
3) - While considering the application of bail, the Magistrate should pay special attention to whether the accused shall not pose a threat to the witnesses or impede the conduct of judicial proceedings if released on bail.
4) - While considering the application of bail, the Magistrate should also take into account the previous record of the accused and make sure that the accused is not likely to be involved in criminal activities.
5) - Bail of normal habitual and felony criminals should not be granted.
Section 437 of CrPC
Section 437 of CrPC, 1973 provides that when bail can be given in the case of non-bailable offense.
This section of the Code of Criminal Procedure empowers the court before which the accused is produced. This section provides for the release of the accused on bail by the court or the police in cases of non-bailable offense which are not punishable by death penalty or life imprisonment. Under Section 437, the court as well as the police have been given the power to release a person on bail but certain conditions have been implied for it. If the accused-
1) - Below 16 years of age.
2) - Woman or ill.
3) - A person with disabilities.
Even if the offence is punishable by death penalty or life imprisonment, accused can be released on surety if the following conditions mentioned above are meet.
For releasing an accused of a bailable offence on bail, the court or the police while exercising their discretionary power, has to take into account certain general principles of status quo.
The Supreme Court, in its various decisions, asserted that the purpose of releasing the accused on bail is to ensure the presence of the accused in the court as required during the course of investigation or trial and that he should not be imprisoned as a punishment during the period under consideration.
In the case of Gurucharan Singh v. Delhi Administration 1978 Supreme Court of India 118, it has been said that-
Under the law, release of the accused on bail is a rule, while refusal to grant bail is an exception.
Whether an offense is bailable or non-bailable, it is determined by the First Schedule to the Code of Criminal Procedure or through the act under which an act or omission has been made an offense.
Ordinarily, the court or police, as the case may be, shall consider the following points to release the accused in the case of non-bailable offense.
1) Charges against the accused.
2) The nature and type of evidence available in the confirmation of the charge.
3) The gravity of the punishment to be awarded if he found guilty.
4) Possibility of the accused to flee in case of bail is sanctioned.
5) What is the possibility of the accused erasing evidence or threatening, tempting or breaking the witnesses etc. during the bail.
6) Estimated time period for trial.
7) Personal history or background of the accused such as health, gender, age, family status, reputation etc.
8) Circumstances of crime.
Under Sectio 437 of Criminal Procedure Code, an accused cannot rightfully seek bail from a police officer or court during pending investigation and trial. But in some cases the court has the discretion to release the accused on bail. Chief among those conditions are-
Under 16 years of age.
Accuse is a woman
Accused is patient or any part of the body is damaged.
The principles mentioned above also have an important role in grant of bail under Section 437 of the Code of Criminal Procedure.
Section 438 (Anticipatory Bail)
The concept of Anticipatory Bail is based on the fact that if a non-bailable offense occurs and a person has a reasonable apprehension of arrest, by applying to the court, he can avoid the potential trouble arising due to the arrest.
While considering the application of anticipatory bail, the court will consider whether there is any possibility of misuse of the freedom granted by the applicant if any bail is granted. He does not want to abscond to avoid criminal proceedings.
Anticipatory bail is before the arrest of a person. As far as the release of a person on anticipatory bail is concerned under Section 438, this power is available only to the Sessions Court and the High Court.
After the decision given in the case of Gurbaksh Singh Sibbia v. State of Punjab 1980 Supreme Court Criminal 465, the stand of the Supreme Court has been that anticipatory bail be granted only for a limited time so that the accused can take regular bail by applying in the trial court for its benefit.
According to the court, anticipatory bail should be considered valid only till the time the accused submits the application for regular bail to the court.
However, even after this decision, in the case of Siddha Ram Sadlingappa Mahetre v. State of Maharashtra, 2010 court states that it will not be appropriate to impose any time limit on the period of anticipatory bail and the court accepting the anticipatory bail should decide its duration in the decision of the case. It was agreed in the court that the court power being a special power to waive on anticipatory bail should be used only in rare cases as far as possible.
The only difference between ordinary bail and anticipatory bail is that ordinary bail is after the arrest of a person while anticipatory bail is in apprehension of arrest of a person.
Section 439 of CrPC
Section 439 of the CrPC 1973 is referring to the special powers of bail of the Sessions Court and the High Court. According to this section, the High Court or Sessions Court can direct a person who is accused of an offense and is in custody to be released on bail. If the offense is of the nature described in section 437 (3), then the court can discharge it. Thus the court may release a person on bail if it considers appropriate.
Under this section of the Criminal Procedure Code, the Sessions Court and the High Court have been given immense powers in relation to the bail. Under sub-section (2) of section 439, the High Court and the Sessions Court may also direct the arrest of any person who is released on bail under this chapter to be handed over for custody.
The power to grant the bail granted to the Sessions Court and the High Court under this section is concurrent with the power of the Magistrate. The only difference is that the magistrate will exercise the power to accept or reject the bail at the preliminary stage under section 437, while the High Court can exercise the power under its appeal or revisional jurisdiction.
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