The Concept of Bail under the Indian Criminal Law

Bail refers to the procurement of temporary release from prison of an accused person who is awaiting trial or an appeal on the deposit of a security (called bail bond) which ensures his submission at the required time to the legal authority. The monetary value/amount of the bail bond is decided by the court having jurisdiction over the prisoner. This security can be paid either in cash, the title papers of property, or the private person bond or through a professional bondsman. The term bail is derived from a French word “bailer” which means ‘to give’ or ‘to deliver’. Bail is granted to the accused on a condition that the accused will appear before the court as and when called by the court. It is a conditional restraint on the person’s liberty, wherein the accused is freed on bail on a promise to appear before the court on the date and time decided by the court.

Index 

• Types of Bail 

• Object and Purpose Behind Granting Bail 

• Bail in Bailable Offences 

• Bail under Section 436-A

• Bail in Non Bailable Offences 

• Procedure for Filing Bail

• Cancellation of Bail

• Conclusion

 

Types of Bail- 

Depending upon the stage of the criminal matter, the accused can file for three types of bail. These include- 

• Regular Bail-

This type of bail can be granted to an accused person who has already been arrested by the police and is in police custody or judicial custody. The application for a regular bail can be filed under Section 437 and Section 439 of CrPC.

• Interim Bail-

Interim bail is granted under the code for a short duration of time i.e., before the hearing for the regular bail or anticipatory bail has taken place. 

• Anticipatory Bail 

A person who anticipates arrest for a non bailable offence may file an application for bail. This type of bail is granted under Section 438 of CrPC. The application for this type of bail is filed before arrest and hence, the police cannot arrest the person if the bail has been granted.

 

Object and Purpose behind Granting Bail 

The Hon’ble Supreme Court highlighted the object and purpose of bail in the case of Sanjay Chandra vs CBIas, “The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required”.

 

Bail in Bailable Offences 

Bail is not defined under CrPC. However, the term bailable offences is defined. Bailable offences are offences which are mentioned as bailable in the First Schedule of the Code or which are made bailable by any other law for the time being in force. As per Section 436 of the Criminal Procedure Code, if a person is charged with a bailable offence then he is entitled to the grant of bail as a matter of right. The bail may be granted before the police station itself or if forwarded to the Magistrate Court then by the Magistrate. In such cases, the bail is granted as a matter of right and discretion does not play any role in it. So, as soon as the person is ready to furnish the bail amount, it imposes a statutory duty of release on the police officer or the Magistrate concerned. In some suitable cases, the person is also released on his own bond. The bail is denied only if the person is not able to furnish the bail amount.

Bail under Section 436-A

There have been certain instances wherein an undertrial prisoner was detained for a period more than the period mentioned as the maximum period of sentence. So, for this reason a new provision Section 436-A was added. As per this provision, if an under-trial prisoner has been detained for a period extending to half of the maximum period of imprisonment provided for the alleged offence, he should be released without surety on his personal bond. This provision is not applicable in cases if the maximum sentence provided is the sentence of death.

Bail in Non-Bailable Offences

Non Bailable Offences are defined as offences other than the bailable offences. In case of non bailable offences, bail is not available to the accused as a matter of right. The power and discretion to release a person on bail in non bailable cases lies with the court or with the police officer in charge of the police station who has arrested him without a warrant. Section 437 deals with this power of the court. 

Some non bailable offences include murder, rape, gang rape, sedition, waging war against the government, etc. 

The police officer in charge can grant bail only in a case wherein there are no reasonable grounds for believing that the accused has committed the non bailable offence or in cases wherein the non bailable offence contemplated in the case is not punishable with death or life imprisonment.

The court while deciding the application of bail considers the following conditions- 

• In a case wherein the accused person is a woman or child, the bail can be granted in a non bailable offence.
• In cases wherein a delay was caused by the complainant in registering the FIR, bail can be granted.
• In a case wherein there is a lack of conclusive evidence, bail can be granted by the court on its discretion.
• If the accused person is physically unfit or suffering from some grave sickness.
• If there exists some corroboration hinting towards an animosity in between the accused and the person who had filed the criminal matter.

 

Procedure for Filing Bail 

The procedure for filing a bail depends upon the stage at which the case is. In cases wherein the person is not yet arrested, an anticipatory bail can be filed. This type of bail application is filed when a person anticipates that an FIR may be filed against him. Mostly, in Section 498A cases (cruelty by husband and his family) an anticipatory bail is filed by the husband and his family.

If the accused is already arrested by the police and is taken to the police station, then he can with the help of his lawyer file an application for bail as per the requisite format mentioned under the Criminal Procedure Code. The bail application is heard and decided by the court. It is at first filed and approved by the court and then presented to the police to get the arrested person out of the jail.

The bail amount is decided as per the discretion of the court. However, a small bail amount is required to be filed in cases that are less serious in nature.

Cancellation of Bail

The court has the power to cancel the bail of the accused person and get him arrested. This is done by the court if it finds out that the bail granted was perverse in nature or was granted without application of mind. The bail granted to a person can also be cancelled by the court if the accused misuses its liberty. It can be cancelled on grounds of subsequent conduct, for example non appearance of the accused on the stipulated date and time. Cancellation of bail on the merits of the case can only be cancelled by a superior court. However, in case of misuse of liberty the bail can be cancelled by the very court that had granted it.

Conclusion 

Bail in bailable offences is a matter of right while in non bailable offences it depends upon the discretion of the court. Our experts at RCIC are well versed with the concept of bail and can help the client at each stage. From explaining the law, filing of the bail application to making the relevant arguments, our team can help you at each stage of your criminal case. Our law firm has an experience of more than 3 decades in handling diverse legal matters and hence can provide you with the most suitable advice on the basis of experience and knowledge.

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