When a person is arrested by the police authorities on account of the commission of a criminal offense, the first step for his family or relative would be to approach a good lawyer and ask for bail. The concept of bail is an integral element of our criminal jurisprudence which derives its authority from our holy Constitution. The importance of bail is recognized under Article 21 of the Constitution which provides for the enjoyment of the fundamental right of life and liberty without any hindrances. Though a person is detained to ensure his availability for the trial and non-tempering of evidence, it is a trite law that a person should be released on bail after furnishing sufficient security, unless the person has committed a severe crime and there is a possibility of fleeing from justice.
In this article, we are going to discuss in detail the meaning and types of bail in our criminal system. Further, we will explore the factors based on which an application for bail can be allowed or rejected.
What is Bail?
The term bail has been derived from the French verb ‘Bailer’ which connotes ‘to give’ or ‘deliver’. In simple words, bail can be understood as a temporary release of a detained person who is yet to face a trial after submitting sufficient security. The main objective of detention is to ensure the availability of the accused during the trial and if the attendance can be guaranteed without the need for detention, the person ought to be released on bail. A bail is a form of security where a person promises to appear before the court whenever asked to do so.
Meaning of Bail
The Criminal Procedure Code (CrPC) does not define the term bail but it deals with various facets of bail. For better understanding, the Black’s Law Dictionary defined bail as a security (cash or bond) required by the court to release a person from detention on the condition to appear on a future date. The Hon’ble Supreme Court also held that bail is the mechanism which affects 2 diverse interests, namely, the public interest of security against crime and the individual interest to enjoy personal freedom. It is a fundamental principle of criminal law that an accused is presumed to be innocent until proven guilty, thus, keeping a person in detention endlessly before the completion of the trial will be contrary to this settled principle.
Bailable and Non-bailable offense
As per Section 2(a) of CrPC, bailable offense refers to those offenses which are classified as bailable as per the First Schedule of the Code or any other law in force. For bailable offenses, it is a matter of the right of the accused to get bail and the police officer or any judicial authority has no right to reject the bail application. Section 436 of the Code provides that a person accused of any bailable offense can apply for bail while under arrest or at any stage of proceedings.
For a logical understanding, all the offenses which are not defined as ‘bailable’ will be deemed as non-bailable offenses. It is important to note that an accused cannot ask for bail as a matter of right in case of a non-bailable offense, and it totally depends upon the discretion of the court. However, an accused will not be entitled to apply for bail, if any of the following conditions are satisfied:
- He is arrested for the commission of an offense which is punishable by death penalty or life imprisonment;
- The accused has committed a cognizable offense and he had been previously convicted of an offense punishable with death penalty or life imprisonment.
Types of Bail
In our country, bail is divided into 3 categories, which are as follows:
It is governed by Sections 437 and 439 of the CrPC and it is granted when a person is detained under police custody. In case of a non-bailable offense, bail can be granted in the following circumstances:
- If the accused is below the age of 16 years;
- If the accused is a woman;
- If the accused is ill or infirm.
As a condition of the bail, it is mandatory for the accused to not commit any offense similar to the one he is currently accused of. Further, he shall not temper any material evidence any influence any witness having information related to the case.
As the term suggests, interim bail is given for the temporary and short-term release of a person until the regular bail application is decided by the court. However, this concept of interim bail is widely misused by the parties, as highlighted by Hon’ble Supreme Court in the landmark case of Rukmani Mahato v State of Jharkhand.
In simple words, this bail provides pre-arrest protection to the accused when he is under apprehension of being arrested. Interestingly, when a person applies for anticipatory bail, the investigation agency may become vigilant about the involvement of that serious in committing the crime. Section 438 of CrPC enumerates various factors which must be taken care of while deciding an application for anticipatory bail, which are as follows:
- Severeness of the offense and the role of the accused in the commission of the crime;
- Past criminal antecedents of the accused;
- Possibility of fleeing from justice;
- Possibility of committing the same offense again;
- Apprehension of tampering with evidence and threatening the witnesses.
Conditions while Granting a Bail
Over the decades, the judiciary has laid down comprehensive guidelines detailing the conditions which must be fulfilled by the accused while granting bail. These conditions are as follows:
- The accused shall appear before the Court or any other investigating agency whenever asked to do so;
- The accused shall not directly or indirectly induce or threaten any other person who is related to the case;
- The accused shall not leave the country without obtaining the prior permission of the Court;
- Any other suitable condition, as the court deems fit.
Judicial Precedents on Bail
Since granting or refusing bail entails a wide degree of discretion to the judicial authorities, the Courts have been guided by settled principles while using that discretion. Some landmark cases on the jurisprudence of bail are discussed below:
- Narasimhulu v. Public Prosecutor
In this landmark case, Justice Krishna Iyer opined that the concept of bail attacks the blurred area of the criminal justice system and largely hinges on the term ‘judicial discretion’. The Courts must exercise such discretion with utmost caution and reasonability and shall be guided by the principle of fairness while evaluating all the facets of the case.
- Kalyan Chandra Sarkar v. Rajesh Ranjan
The Hon’ble Apex Court observed that changes in the facts and circumstances of the case can be a valid ground to make another application for granting bail and there shall be no strict prohibition thereon. For instance – Filing a bail application after the submission of charge sheet will be considered a substantial change.
- Re: Digendra Sarkar Case
In this case, it was held that an application for anticipatory bail can be filed even before the registration of the First Information Report (FIR). Thus, FIR cannot be considered a condition precedent before applying for anticipatory bail under Section 438 of CrPC.
- Suresh Vasudeva v State
In this case, it was held that anticipatory bail can only be granted in case of non-bailable offense as the wording of Section 438(1) is very clear and unambiguous.
- Sushila Agarwal v State
The Hon’ble Supreme Court held that the duration of anticipatory bail cannot be for a permanent period and it is open for the court to limit the tenure, keeping in mind future developments or any other special condition.
The concept of bail is deeply rooted in our criminal justice system and it aims to strike a balance between two conflicting demands of society: societal interest and individual freedom. Our Criminal jurisprudence is guided by the doctrine of presumption of innocence and the concept of bail provides for the temporary release of a person from detention before the charges against him are proved in court. The bail ensures the protection of our fundamental right of freedom and enjoyment of personal liberty without any restrictions. While granting bail, the courts must keep in mind the guiding principle of ‘bail is the rule and jail is an exception’.