Bail is a rule and jail is an exception – Supreme Court of India
The word bail has been coined from the French word ‘bailer‘, which means to deliver or give. The tentative release of an accused from custody is termed as bail. In other words, bail is the security for the accused person. In this CrPC law note, you’ll learn more about bail under the Indian Criminal Procedure Code.
Bail Provisions Under Indian Constitution
The Indian Constitution under Article 21 guarantees the right to life and personal liberty to every individual. A person is assumed to be innocent unless proved guilty. Hence, an accused shall not be deprived of personal liberty unless prescribed by a fair and just procedure.
Bail Provisions Under CrPC
The term ‘bail‘ is nowhere defined in the Criminal Procedure Code, 1973. However, bail provisions have been defined in CrPC under sections 436-450. The first schedule of CrPC also defines which offences are bailable and which are not. Generally, non-bailable offences are more heinous crimes.
Bail in Bailable Offence
Section 436 of CrPC deals with provisions for bail in bailable offences. This provision is mandatory in nature, and the police or the court has no discretion over it.
Case Law: Vaman Narayan Ghiya vs the State of Rajasthan: The apex court has held that no jurisdiction lies to any court while granting bail under section 436 CrPC except asking for security.
Note: 2005 Amendment of CrPC removed the sureties in the case of indigent persons.
Bail in Non-Bailable Offence
Section 437 of CrPC deals with provisions for bails regarding non-bailable offences. It is based purely on the discretion of the court (other than the High Court and Sessions court).
Case Law: Kalyan Chandra Sarkar vs Rajesh Ranjan: The apex court observed that the detention of the accused in non-bailable offences could not be questioned as being violative of Article 21 of the Constitution.
Stages or Types of Bail
1. Anticipatory Bail
Anticipatory bail is filed before the arrest is made. In other terms, it is also known as pre-arrest bail. The accused apprehending arrest can approach the High Court of the concerned state for anticipatory bail application under section 438 of CrPC. Anticipatory bail is frequently in the news, and politicians, prominent personalities, journalists, etc., often use this.
2. Bail on Arrest
This is filed after the arrest of the accused person. Under Section 437 of CrPC, the arrested person can approach the court for bail.
3. Bail for Convict
This is filed post-conviction by the court, and an appeal lies against the same. When the accused has been convicted by the court and has preferred an appeal, the accused can apply to the appellant court for bail.
Related Law Note: Criminal Appeal and Its Kind Under CrPC
4. Default Bail
When the charge-sheet is not filed in the court within the prescribed time period or in other words, the investigation remained incomplete within the stipulated time period; the accused is entitled to default bail.
5. Interim Bail
Lal Kamlendra Pratap Singh vs State of U.P. and Ors. (2009): Interim bail is nowhere defined in CrPC. The concept of interim bail was started by the Hon’ble Supreme Court in 2009, stating that interim bail be granted pending disposal of bail application because arrest and detention of a person may cause irreparable loss.
Rukmani Mahato vs the State of Jharkhand (2017): Here, the misuse of interim bail came to the Supreme Court’s notice. The apex court had expressed extreme displeasure over granting regular bail based on the pre-arrest/interim bail of the superior court. The apex court held:
Even if the superior court dismisses the anticipatory bail plea after further examination, the normal bail granted by the subordinate court will continue to hold the field, rendering the superior court’s final denial of the pre-arrest bail useless.
Advantages of Bail
Some of the major benefits of granting bail are:
- One can be well-braced for trial.
- One’s reputation can be preserved.
- One can attend his work or job.
- Family bonding and responsibilities can be maintained.
- Freedom from police torture.
- Freedom from the boredom of hardened criminals.
- Freedom from low hygienic conditions of the jail.
- One can meet his advocate anytime.
Disadvantages of Bail
The primary concerns for granting bail are:
- The burden of expenses lies on the state.
- Damage is caused to the reputation of the accused.
- The accused family finds it difficult to adjust to society because people have inferior views against the same.
Cancellation of Bail
Bail can be cancelled anytime under section 437 (5) of CrPC if the accused violates any of the conditions prescribed by the court. The petition for cancellation of bail can be filed by the state or the party aggrieved in the court.
Important Case Laws Regarding Bail
In May 2021, the Madhya Pradesh High Court has stated that District Judiciary is extremely tight twisted in granting bail, which in turn issued directions regarding granting of bail to police as well as Judicial Officers, which are as follows:
Instructions to Police Regarding Bail
- When the maximum penalty for an offence is up to 7 years in jail, the accused may not be detained by the police as a matter of course; unless there is a specific statute that requires it.
- Before arresting in such a case, the police would record the reason in writing why the arrest was necessary: To prevent the accused from committing any further offences, or for case’ proper investigation, or to prevent the accused from causing the disappearance of evidence or based on credible suspicion that the accused would tamper with evidence or prevent a witness from testifying, or based on credible apprehension that the accused would tamper with evidence or prevent a witness from testifying.
- While arresting an accused of offences carrying a potential punishment of up to 7 years, the State Police is required to format and produce a checklist of pre-conditions that the police must meet under section 41(1)(b)(ii) of the CrPC. A copy of the checklist must be submitted with the remand application to the Magistrate who has the authority to remand the accused to the police or judicial custody.
- If the police decide not to arrest the suspect, the Magistrate must be notified within two weeks of the FIR being filed. For circumstances that must be proven in writing, the Superintendent of Police may extend this term.
- If questioning of the accused is needed, the accused must be issued with a notice under section 41A CrPC or section 160 CrPC within two weeks of the FIR being registered, which may be extended by the Superintendent of Police of the district concerned for reasons to be recorded in writing.
- When the police do not arrest the accused, and the accused appears before the police on notice under section 41A or section 160 CrPC and assists the police in the course of the investigation, the police are not to arrest the accused unless there are compelling reasons that must be recorded, as stated in paragraph 31.2.
- Suppose the police fail to comply with the requirements mentioned above. In that case, they will be held in contempt of the court’s order, in addition to any other administrative action that may be taken against the erring officer.
Instructions to Judicial Magistrates Regarding Bail
- When exercising remand powers, the Magistrate must determine whether the arrest made by the police meets the conditions of section 41 of the CrPC, as stated in paragraph 11.2 of Arnesh Kumar’s case.
- The Magistrate must determine if the checklist is available, as ruled by the Supreme Court in Arnesh Kumar’s case, paragraph 11.3.
- Suppose the police fail to comply with paragraphs 11.2 and/or 11.3 of Arnesh Kumar’s case. In that case, the Magistrate shall not authorise further detention of the accused and shall release him immediately, as the arrest is unlawful in and of itself. Thus his detention would be unlawful as well due to the police failing to comply with the requirements of section 41 of the Criminal Procedure Code.
- In accordance with paragraph 11.4 of Arnesh Kumar’s judgement, it is obligatory for the Magistrate authorising detention to record his independent satisfaction and to guarantee that his satisfaction for further remand of the accused is fulfilled in his order of remand.
- The Magistrate must also determine whether specific reasons for the accused’s arrest have been documented and if those reasons are significant, leading to a reasonable judgement that one of the conditions for the accused’s continued custody as an undertrial has been met.
- Failure on the part of the Magistrate to perform as ordered herein may result in administrative procedures being initiated against such Magistrate.
The power given to the police for arrest has become one of the remunerative sources for police corruption. It has become a handy tool who act with ill motive.
Courts, especially the district courts and courts subordinate to it, hesitate to provide bail to the accused as the fear grows in Judicial Magistrates’ minds as to they may be questioned by higher judiciary or vigilance case may be initiated against them.
In such cases, the accused approaches the higher judiciary for bail, resulting in courts’ overcrowding. Therefore, Judicial Magistrates of the level of District Judge and below should adhere to the directions given by High Courts and Supreme Courts while deciding bail related cases.
This not only will help the accused in getting bail rather overcrowding of higher courts can be prevented. This will also be a lesson for the police for making unnecessary arrests.
Now, we have a different writer talking about Bail in her style. Please see this as well.
The provisions of bail are mentioned in chapter XXXIII of the Criminal Procedure Code from sections 436 to 450. The word ‘Bail’ has not been defined in the code. Law Lexion defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation.
Object of Bail
According to ‘Black’s Law Dictionary’ the object of bail is 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.
In ‘Moti Ram vs State of MP‘, the court held that there is no definition of bail in the code, although the terms bailable offence and non-bailable offence have been defined.
The code classifies offence as bailable and non-bailable offence. Both the terms have been defined in section 2(a) of the code. Serious offences which are punishable with imprisonment of three years or more are considered non-bailable offences. In contrast, less serious crimes punishable with imprisonment of less than three years are considered bailable offences.
Circumstances of Bail
Here are six conditions of bail in the Criminal Procedure Code.
1. Bail in Case of Bailable Offence – Section 436
Bail in bailable cases is a matter of right. Section 436 of CrPC deals with bail in bailable cases. This section empowers the court as well as the police to grant bail. Any accused arrested for committing a bailable offence and is willing to provide bail must be released with or without sureties. Provided where such person is indigent and is unable to provide surety, such person shall be discharged executing a bond without sureties.
2. Bail in Case of Non-Bailable Offence – Section 437
Bail in non-bailable cases is a privilege. Bail under section 437 of CrPC is granted at the court’s discretion. A person shall not be released on bail if:
(i) the person is guilty of an offence punishable with death or imprisonment of life;
(ii) the offence is a cognisable offence;
(iii) the person has been previously convicted of an offence punishable with death or imprisonment of life;
(iv) the person has been convicted twice or more in the past for a cognisable offence punishable with imprisonment for three years or more but not less than seven years.
3. Anticipatory Bail – Section 438
It is the pre-arrest bail. Any person who apprehends his/her arrest regarding a non-bailable offence can apply for anticipatory bail. Anticipatory bail has not been defined anywhere in the code.
In ‘Balchand Jain vs State of MP‘, the Supreme Court specified anticipatory bail as bail in anticipation of arrest.
In ‘Siddharam Satlingappa Mhetre vs State of Maharastra‘, the Supreme Court emphasised that anticipatory bail is a device to secure the individual’s liberty and neither a passport for the commission of crime nor a shield against any kinds of accusations likely or unlikely.
4. Bail in Default: Bail Granted by Default Due to Non-Completion of Investigation – Section 167(2)
When the investigation is not completed within 24 hours, the judicial magistrate is empowered to authorise the custody of the accused under section 167 of the code.
A person who is detained for committing an offence and is undergoing investigation are eligible for bail;
(i) After 90 days when investigation relates to an offence punishable with death or imprisonment for not less than ten years
(ii) After 60 days, if the investigation is related to any other offence
If the investigating authority fails to file a charge sheet.
5. Interim Bail
The bail granted to a person when the main bail application is yet to be disposed of and may consume a longer time to decide. It was recently granted to comedian Munawar Faruqui as the procedure laid down under law for arrest was not followed.
6. Bail After Conviction – Section 389
A convicted person can get bail from the appellate court after filing the criminal appeal under section 389(1) and (2) of CrPC.