Introduction:
“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.”
–Justice V.R.Krishna Iyerin Gudikanti Narasimhulu case(1977)
Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal,bythe deposit of security to ensure his submission at the required time to legal authority. Bail is apost arrest remedy aimed at the release of the arrested suspect till the date of his trial. The monetary value of the safeguard known as the bail, or more precisely, the bail bond, is determined by the court with jurisdiction over the inmate. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security.
Article 21 of the Indian Constitution grants the right to life and personal liberty to every individual. It upholds the fundamental right to live with dignity and personal freedom, which includes the entitlement to seek bail when detained by any law enforcement agency. Bail isallowed to prevent confinement of innocent persons which would otherwise result into a pre-trialpunishment and to enable an accused person to prepare his defense to the charges against him which is the common law principle, presumption of innocence.
Classification ofOffencesforthepurposeofBail
Bailable Offence: According to Section 2(a) of CrPC, bailable offence means an offence that isclassified as bailable in the First Schedule of the Code, or which is classified as bailable underany other law. Section 436 of Code of Criminal Procedure, 1973, lays down that a personaccused of bailable offence under IPC can be granted bail. If there are sufficient reasons tobelieve that the accused has not committed the offence. There is sufficient reason to conductfurther enquiry in the matter. The person is not accused of any offence punishable with death,life imprisonment or imprisonment up to 10 years. According to section 436 of the CrPC, if theallegedcrimeis bailable, the accused can, as a matter of law, been titled to bail before the Police Station itself or, if it is referred to the Magistrates Court, before the Magistrates Court. An accused can claim bail as a matter of right if he is accused of committing a bailable offence.
There is no question of any discretion in granting bail for such offences. Bail may be asserted as a privilege and the Police Officer and the Court have a contractual responsibility to release a person on bail if he is willing to grant bail. In a suitable circumstance, such an individual may also be released on his own bond.
Non Bailable Offence: Non-bailable means an offence in which the bail cannot be granted as amatter of right, except on the orders of a competent court. In such cases, the accused can applyfor grant of bail under Sections 437 and 439 of The Criminal Procedure Code, 1973. When opposed to bailable offences, and these offences are grave in nature. The sentence in the case ofnon-bailable crimes is three years or more. The issuance of bail in respect of a non-bailableoffence is subject to the Court's judicial discretion. If the accused is a woman or a child, bail canbe granted in a non-bailable offence. If there is lack of evidence then bail in non-bailable offences can be granted. If there is delay in lodging FIR by the complainant, bail may be granted. Bail can be granted in non bailable offence If the accused is gravely sick.
TypesofBail
Regular bail: Regular bail refers to a legal mechanism through which a court can order the release ofa person in custody on suspicion of committing an offense, with the condition that they do not obstruct the course of justice. These kinds of bail may involve executing a bond withsureties. When a person is arrested for a bailable offense, they have the right to be released asoutlined in Section 436 of the Code of Criminal Procedure (CrPC). Section 437 of the CrPC applies to bail petitions submitted in magistrate's courts. The decision to grant or reject regular bail is based on judicial discretion governed by the regulations outlined in Section 437 of the CrPC. On the other hand, Section 439 applies to bail applications submitted in Courts of Sessions or High Courts.
Interim bail: An interim bail is a temporary form of bail granted during the pendency of an application for anticipatory or regular bail. It provides a brief respite to the accused, temporarily releasing them from custody. However, it is conditional and can be extended based on thecircumstances. If the interim bail expires and the accused fails to meet the requirements for its continuation or pay the necessary amount, their right to freedom is revoked, and they may beretaken into custody. Interim bail serves as an interim measure until a final decision is made onthe bail application, preventing unnecessary detention of the accused during this period.
Anticipatory bail: Anticipatory bail can be sought under Section 438 of the Code of Criminal Procedure by any individual who anticipates being charged with a non-bailable offense. The application for anticipatory bail should be filed in the High Court or Sessions Court having jurisdiction over the alleged crime. Anticipatory bail is sought prior to arrest, and if granted by the court, it prevents the police from arresting the individual.
Default Bail: According to Section 167 of the Code of Criminal Procedure (CrPC), when a person is arrested and the investigation cannot be completed within 24 hours, they must be presented before a Magistrate. The Magistrate can then authorize their detention for a maximum period of 15 days. Typically, this detention period is extended by an additional 15 days to allow the police or investigating agency to complete their investigation.(as amended)
However, Section 167(2) of the CrPC specifies that in cases involving offenses punishable by death, life imprisonment, or imprisonment of atleast 10 years, the detention period cannot exceed 90 days. For other offenses, the limit is 60 days. If the police or investigating agency failsto file a chargesheet or complaint within the specified period, the accused is entitled to default bail. This right is absolute and not at the discretion of the Court. If the accused can demonstrate that the required 60 or 90 days have passed since their arrest without any chargesheet or complaint being filed, the Court is obligated to grant them default bail.
Powers of the High Court or Court of Session in granting bail (section 439 of the Code of Criminal Procedure, 1973):
a) According to Section 439(1) of the Code of Criminal Procedure, a High Court or Court ofSession may direct,That any person accused of an offence and in custody be released onbail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
b) That any condition imposed by a Magistrate when releasing any person on bail be setaside or modified. However, the High Court or the Court of Sessions shall, beforegranting bail to a person who is accused of an offence which is triable exclusively by theCourt of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the public prosecutor unless it is,for reasons to be recorded in writing of opinion that it is not practicable to give such notice.
c) As per Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Sessions may direct that any person who has been released on bail under Chapter XXXIII (i.e. ,relating to bail)be arrested and commit him to custody.
d) The powers of the High Court in granting bail are very wide; even so where the offence is Non-Bailable, various considerations will have to be taken into account before bail is granted in case of Non-Bailable offence. Under Section 439(1) of the Code, the High Court can only release the accused in cases pending anywhere in the State on bail orreduce the amount of bail, but cannot order the arrest or commitment to custody of anyperson who has been released on bail by the lower Court but it can order to arrest the person who had been released on bail under Section 439 (2) of the Code.
e) In a recent judgment, Hon’ble Supreme Court has held that there are no restrictions on the High Court or Sessions Court to entertain an application for bail, provided, accused is in custody. The judgment has put an to end the decades old practice of first filing a regular Bail Application before a Magistrate having jurisdiction, and get it rejected for the purpose of approaching the Sessions Court or High Court for bail.
CancellationofBail:
The Code of Criminal Procedure makes clear provisions for cancellation of bail and taking accused back in custody. Section 437(5) states that any court which has released a person on bail under sub-section (1) or sub-section (2) of section 437, may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. Similarly section 439 confers onthe High Court and the Court of Session power to cancel bail. Section 439(2) The Code ofCriminal Procedure makes clear provisions for cancellation of bail and taking accused back in custody. The power of cancellation of bail can be resorted to broadly in the following twosituations:
(1) On merits of a case mainly on the ground of the order granting bail being perverse, or passedwithout due application of mind or in violation of any substantive or procedural law; and
(2) On the ground of misuse of liberty after the grant of bail or other supervening circumstances.
Bail in the first type of cases can be cancelled by superior courts only, where as in the second category of cases bail can be cancelled by the very court which may have granted bail.
Section 439(2) confers powers on the High Court and the Sessions Court to direct re-arrest of the accused who might have been released on bail by any court and commit him to custody. Section437(5) provides for the cancellation of bail by a court other than a High Court or a SessionsCourt. . It states that a court other than High court or Sessions Court may, if it considersnecessary to do so, direct that a person released on bail by it be arrested and committed tocustody. A comparison of s. 439(2) and section 437(5) makes it clear that the powers ofcancellation of bail vested in the High Court and the Sessions Court are very wide vis--vis thepowers of the Magistrate court. However, bail once granted should not be cancelled in amechanicalmannerwithout consideringwhetheranysuperveningcircumstanceshaverendereditno longer conducive to a fair trial to allow the accused to retain his freedom by enjoying theconcessionofbailduringthetrial.
Thegroundsfor cancellationofbailunder ss.437(5)and439(2) areidentical, namely,bailgrantedundersection437(1)or(2)orsection439(1)canbecancelledwheretheaccused
a) misuses his libertybyindulginginsimilarcriminalactivity,
b) interfereswiththecourseofinvestigation,
c) attemptstotamperwithevidenceofwitnesses,
d) threatens witnesses or indulges in similar activities which would hamper smoothinvestigation,
e) attemptstofleetoanothercountry,
f) attempts to make himself scarce by going underground or becoming unavailable to theinvestigatingagency,
g) Attemptstoplacehimselfbeyondthereachofhis surety, etc.Thesegroundsareillustrative and notexhaustive.
CONCLUSION:
The Personal liberty is of utmost importance in our constitutional system recognized underArticle 21. Deprivation of personal liberty must be founded on the most serious considerationsrelevant to welfare objectives of the society as specified in the Constitution. Even though thelawofthelandandHon’bleHighercourtsinvariouscases havetriedtointerveneandalsohavelaiddowncertainguidelinestobefollowedbutunfortunatelynothinghasbeendoneaboutit.
There is also a strong need felt for a complete review of the bail system keeping in mind thesocio-economic condition of the majority of our population. While granting bail the court mustalso look at the socio-economic plight of the accused and must also have a compassionateattitudetowardsthem.Aproper scrutinymaybedonetodeterminewhether theaccused hashisrootsinthecommunitywhichwoulddeterhimfromfleeingfromthecourt.
“Society has a vital interest in grant or refusal of bail because every criminal offence is anoffence against the state. The order granting or refusing bail must reflect perfect balancebetweentheconflictinginterests,namely, sanctityofindividuallibertyandtheinterestofthesociety”.
–JusticeDalveerBhandariinS.S.Mhetrevs.StateofMaharashtra(2010)
BIBLIOGRAPHY:
1. JanakRajJai, BailLawandProcedures, UniversalLawPublishing, 6thedition,2015
2. CodeofCriminalProcedure,1973
3. Webster’sLawDictionary
4. AsimPandey,LawofPracticeandProcedure,SecondEdition, 2015,LexisNexis.
6. Black’sLawDictionary
Written By,
Purva Dhamale,
Intern, Chanchlani Law World
Comments