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, by the deposit of security to ensure his submission at the required time to legal authority. Bail is a post 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.
Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. Bail is a post 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.
Classification of Offences for the purpose of Bail
Bailable Offence: According to Section 2(a) of CrPC, bailable offence means an offence that is classified as bailable in the First Schedule of the Code, or which is classified as bailable under any other law. Section 436 of Code of Criminal Procedure, 1973, lays down that a person accused of bailable offence under IPC can be granted bail. If there are sufficient reasons to believe that the accused has not committed the offence. There is sufficient reason to conduct further 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 the alleged crime is bailable, the accused can, as a matter of law, be entitled 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 means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for 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 of non-bailable crimes is three years or more. The issuance of bail in respect of a non-bailable offence is subject to the Court's judicial discretion. If the accused is a woman or a child, bail can be 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 in can be granted in non bailable offence If the accused is gravely sick.
Types of Bail
Regular bail: Regular bail refers to a legal mechanism through which a court can order the release of a 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 with sureties. When a person is arrested for a bailable offense, they have the right to be released as outlined 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 the circumstances. 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 be retaken into custody. Interim bail serves as an interim measure until a final decision is made on the 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. However, Section 167(2) of the CrPC specifies that in cases involving offenses punishable by death, life imprisonment, or imprisonment of at least 10 years, the detention period cannot exceed 90 days. For other offenses, the limit is 60 days. If the police or investigating agency fails to 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):
According to Section 439(1) of the Code of Criminal Procedure, a High Court or Court of Session may direct, (a) That any person accused of an offence and in custody be released on bail, 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 set aside or modified. However, the High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court 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. 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. 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 or reduce the amount of bail, but cannot order the arrest or commitment to custody of any person 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. 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.
Cancellation of Bail:
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 on the High Court and the Court of Session power to cancel bail. Section 439(2) The Code of Criminal 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 two situations:
(1) On merits of a case mainly on the ground of the order granting bail being perverse, or passed without 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, whereas in the second category of cases bail can be cancelled by the very court which may have granted bail.
Section 437(5) provides for the cancellation of bail by a court other than a High Court or a Sessions Court. Meaning thereby it confers power of cancellation on the Magistrate court. It states that a court other than High court or Sessions Court may, if it considers necessary to do so, direct that a person released on bail by it be arrested and committed to custody. By judicial pronouncements this provision has been interpreted to mean that any court that has released the accused on bail has power to direct arrest of such person and commit him to custody if subsequent to the release on bail, the circumstances justify to do so. Ordinarily the court would be entitled to exercise this power only where the person released on bail is guilty of misuse of the liberty granted by the court or where there is new development in the investigation or recovery of cogent material prima facie involving accused with heinous crime. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
The grounds for cancellation of bail under ss. 437(5) and 439(2) are identical, namely, bail granted under section 437(1) or (2) or section 439(1) can be cancelled where the accused (1) misuses his liberty by indulging in similar criminal activity, (2) interferes with the course of investigation, (3) attempts to tamper with evidence of witnesses, (4) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (5) attempts to flee to another country, (6) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (7) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. 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. A comparison of s. 439(2) and section 437(5) makes it clear that the powers of cancellation of bail vested in the High Court and the Sessions Court are very wide vis--vis the powers of the Magistrate court. Section 439(2) confers powers of cancellation of bail on the High Court and the Sessions Court in respect of orders of bail passed itself as well as by any court subordinate to it also. The power to cancel an order of bail passed by itself by the High Court or the Sessions Court as the case may be can usually be exercised only where the person released on bail is guilty of misuse of the liberty granted by the court or there is substantial change in the facts of a case. However so far as the cancellation of bail order passed by a court subordinate to it is concerned no such restricted interpretation is justified. Section 439(2) clearly provides that any person who has been released on bail under this Chapter may be arrested and committed to custody by a High Court or Court of Sessions. So it is legally permissible to a High Court or a Court of Session to review and examine an order of bail passed by a court subordinate to it on merits and decide whether such order is legally sustainable or not.
CONCLUSION:
The Personal liberty is of utmost importance in our constitutional system recognized under Article 21. Deprivation of personal liberty must be founded on the most serious considerations relevant to welfare objectives of the society as specified in the Constitution. Even though the law of the land and Hon’ble Higher courts in various cases have tried to intervene and also have laid down certain guidelines to be followed but unfortunately nothing has been done about it. There is also a strong need felt for a complete review of the bail system keeping in mind the socio-economic condition of the majority of our population. While granting bail the court must also look at the socio-economic plight of the accused and must also have a compassionate attitude towards them. A proper scrutiny may be done to determine whether the accused has his roots in the community which would deter him from fleeing from the court.
“Society has a vital interest in grant or refusal of bail because every criminal offence is an offence against the state. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society”.
– Justice Dalveer Bhandari in S.S. Mhetre vs. State of Maharashtra (2010)
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