Bail in India: Legal Provisions and Procedure

The term “bail” is not defined in the CrPC (Criminal Procedure Code), however, the code does define “bailable offences”. Section 2 (a) defines  bailable offence  “as 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, and non- bailable offence means any other offence.” It can be inferred that bail is a conditional temporary release of an accused person from custody awaiting trial. Broadly in India, bails can be of three types: regular bail; anticipatory bail and interim bail; and the process for applying for bail shall depend on the stage at which the matter is pending.

Section 50 CrPC obligates the police that whenever arrests are made without warrant any person other than a person accused of a non-bailable offence, shall be informed that he is entitled to be released on bail and that he may arrange for sureties on his behalf. Bail can be granted by the police as well as by the courts.

Section 436 CrPC, deals with granting of bail for a bailable offence where the person has been arrested or detained without any warrant. Such bail can be granted by the police or by the court. The court or the police officer as the case may discharge him on his executing a bond without sureties for his appearance; however same is a discretionary power. The section also states that where a person has failed to comply with the conditions of the bail- bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under the code.

Section 440 of the code states that the amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. The Hon. High Court and Court of Sessions has the power to reduce the amount of bail.

Bail in Non-bailable Offences:

Bail in case of bailable offences can be touted as a matter of right, however granting of bail in case of non-bailable offences as a matter of judicial discretion. Section 437 CrPC deals granting of bail in case of Non-Bailable offence, the section also delineates the basis of exercising judicial discretion by stating:

  1.  The bail shall not be granted when
    • such person (accused) shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
    • such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence
    • Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.
    • The Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason.
    • The mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

2.       If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further enquiry into his guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

3.       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 or abetment of, or conspiracy attempt to commit, any such offence, is released on bail the Court may impose any condition which the Court considers necessary-

4.      Any Court which has released a person on bail may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

5.       If, in any case, triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate,  the magistrate directs otherwise for reasons recorded in writing.

6.      If at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties

Anticipatory Bail: Section 438 CrPC deals with the concept of Anticipatory Bail. Section 438(1) states that if a person has reason to believe that he may be arrested on accusation of commission of a non-bailable offence he may apply to the High Court or the Court of Session for a direction that in the event of such arrest, he shall be released on bail. High court and session court may be guided by the following reasoning while granting anticipatory bail:

  1. the court may impose a condition that the person shall make himself available for interrogation by a police officer as and when required;
  2. the court may impose a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
  3. the court may impose a condition that the person shall not leave India without the previous permission of the Court;
  4. such other condition as may be imposed under subsection (3) of section 437, as if the bail were granted under that section.

Apart from the statutory provisions the judiciary through various case laws have also developed the concept of granting of bail. For instance in Prasanta Kumar Sarkar vs. Ashis Chatterjee, (2010) 14SCC 496). It was held that at the time of considering an application for bail, the Court must take into account certain factors such as the:

  1. existence of a  prima facie  case against the accused, 
  2. the gravity of the allegations, position and status of the accused,  
  3.  the   likelihood   of  the   accused  fleeing  from   justice  and repeating   the   offence,
  4. the   possibility   of   tampering   with   the witnesses   and   obstructing   the   Courts   as   well   as   the   criminal antecedents of the accused. 

It is also well settled that the Court must not go into deep into merits of the matter while considering an application for bail.  All that needs to be established from the record is the existence of a prima facie case against the accused. Anil Kumar Yadav vs. State (NCT) of Delhi, (2018) 12 SCC 129.

Interim Bail:

Interim Bail is a temporary bail granting protection to the accused from arrest and direction to prosecution not to arrest the accused till further orders. It can be granted till the time the application of the accused for Anticipatory Bail or Regular Bail is pending before a Court and is generally granted with some condition. One needs strong reasons to secure temporary bail like death, marriage or medical procedure etc. The interim bail can be extended by the court, however,  if the accused person granted interim bail does not fulfil conditions such imposed then the freedom granted under the interim bail will be cancelled and the accused person be taken into custody or a warrant will be issued against the accused person.

Can Bail once granted, be cancelled or revoked?

“439(2) A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.” reproduced from CrPC.

Yes, bail once granted can be revoked; bail is judicial conditional release of an accused person from the custody, however when this enlargement is misused by the said accused person, then under Section 439 (2) and 437(5) of CrPC, the court may review the previous decision on the ground of supervening circumstances. Section 439 CrPC grants special powers to High Court and Session courts in respect of modifying bail terms and conditions to secure justice.

Therefore, Bail is well understood in criminal jurisprudence and Chapter XXXIII of the CrPC contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word ‘bail’ is the surety. The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of the law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law and he will then be imprisoned.

— Advocate Ravindra Vikram, Ph: +91-94100-22521

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