This Article is written by Aparna Chaki student of Heritage Law College (Calcutta University).
Bail, in law, is a term that signifies temporary or transitional emancipation of a person who is accused in any criminal matter wherein the court is yet to pronounce the judgment. In other words, “bail” is the release of an accused person from jail on his yielding security that would guarantee his presence before the court or any other legal authority as and when required. The term “bail” has been deduced from a French word “bailera” which means “to deliver” or “to give”. The term bail has not been defined anywhere in any law book. However, Section 2(a) of the Criminal Procedure Code, 1973 encloses the definition of ‘bailable offence’ as well as ‘non-bailable offence’ and the provisions concerning bails are mentioned from Section 436 to Section 450 of the same Code.
HISTORY OF BAIL
Evolution in England
The conception of bail has its roots set deep in American and English law. During the medieval period in Britain, there prevailed a concept of circuit courts. The judges then used to go to such circuit courts periodically to preside over cases. Meanwhile, the under trials were abandoned in the prisoners in a detrimental and remorseless condition which resulted in them contracting various diseases. These conditions perturbed the under trials and they demanded a separate cell from that of the accused which they were granted with. This finally led to the practice of releasing prisoners on them annexing a surety that would ensure that the released person would appear on the day of his hearing. With the course of time, the idea of monetary bail came up wherein the people getting bail or release from prisons were asked to give a monetary bond that was liable to get forfeited if the released person failed to appear before the concerned authority.
In 1215, The Magna Carta took the first step of granting rights to its citizens wherein no man could be confined to jail without being judged by his peers or the law of the land. Then, came the enactment of Statute of Westminster in 1275 which dissevered crimes as non-bailable and bailable. Further, in 1677 the Habeas Corpus Act was enumerated to the Right of Petition of 1628. This Act granted the right to a defendant to be told the charges against him for which he was being arrested. It also granted him the right to be known if the charges against him were bailable or non-bailable. Later, in the year 1976, the Bail Act came into force. It laid down the general legal provisions of bail that are currently predominant in England. It lays that there is a common established right to bail except as mentioned under the First Schedule of the Act.
Evolution in America
According to few historic sources, the foremost Bail Bonds were entrenched in San Francisco by Peter P. Mc Donough. He introduced a system wherein a person had to pay a percentage to an executive benefactor who put up his own cash as a guarantee that the person would be present in the court on his concerned date of hearing. Later in the year 1791, the Bill of Rights was consolidated with the United States’ Constitution through fifth, sixth, and eighth Amendments. The Bill ensured the citizens of the United States the basic rights of due process of law, just, equitable, fast trial, and protection against enormous bail amounts. Currently, in American law, every defendant has a right to bail until and unless there are adequate grounds not to grant it. The considerable grounds for which bail may be refused are mentioned in the Bail Act of 1976.
The Legal Disposition of Bail in India
The term ‘bail’ has not been mentioned anywhere in Indian law. However, it is widely believed that this system came into existence by looking up at the English and American systems of bails. The Supreme Court had in the case of Kamlapati v. State of West Bengal defined bail as:
“a technique which evolved for effecting the synthesis of two basic concepts of human value, viz., the right of an accused to enjoy his personal freedom and the public’s interest on which a person’s release is conditioned on the surety to produce the accused person in the Court to stand the trial.”
In Prahlad Singh Bhati v. N.C.T., Delhi &Anr., the Supreme Court laid down established principles that while bail is being granted to a person, the Courts need to keep certain things in mind like the essence of evidence, nature of the accusations, character, and reputation of the accused and the suitable likelihood of acquiring the accused’s presence at the date of his trial and corresponding deliberations.
TYPES OF BAIL IN INDIA:
There are commonly three types of bail prevalent in India:
- REGULAR BAIL: Regular Bail is a bail that can be granted by a Court to any person post his arrest by the police. When a person is said to have committed a non-bailable and cognizable offence, the police take him into custody. Once the period of police custody expires, the accused is sent to jail. The Code of Criminal Procedure contains provision under section section 437 and 439 giving the right to the accused person to be released from the custody. In simpler terms, regular bail can be defined as the emancipation of an accused from the custody of the police so that his presence during the trial may be ensured.
Eligibility in the case of Regular Bail: Regular Bail can be granted to only those persons who are taken into custody or arrested for the supposition or commission of an offence for which the punishment does not include imprisonment for life or death penalty. Section 437 of the Code , 1973 contains further provisions that a regular bail might not be granted to the person if he had been previously convicted of any offence that was punishable with imprisonment for more than seven years, imprisonment for life or death penalty. The same section also provides that bail can be granted to an accused in case of a non-bailable offence if she is a woman, child or is gravely sick.
Procedure to get Regular Bail: In order to get a regular bail, the accused can either through his Counsel or by himself write to the Judicial Magistrate of the concerned area to grant him bail. The Magistrate then issues a notice to the concerned Public Prosecutor. On hearing both the sides of the parties, the Magistrate may issue a notice of bail to the accused.
Conditions on which a Bail may be refused: There are various circumstances due to which bail may be refused to the accused. Under Section 42 of the Code, 1973 a bail may be refused to an accused if he refuses to give his correct identity and address or gives one that the police believe it to be false. The primary consideration when bail is denied is the nature and gravity of the offence that has been committed. If the Court is of the opinion that the accused might flee away or not turn up during the trials or there is a considerable amount of threat if the accused is let free, the bail might get rejected.
- ANTICIPATORY BAIL : The word “anticipatory bail” is no where explained in any law Code. However, Section 438 under the Criminal Procedure of Code, 1973 contains provisions regarding anticipatory bail. Any person who has a reason to believe that he might be arrested on the probable ground of him having committed any non-bailable offence, he may apply for an anticipatory bail in the Court of Sessions or the High Court that upon such arrest of his, he shall be released on bail. However, in such cases, the Court, inter alia, takes into consideration certain factors like the nature, essence, and gravity of the accusation, history of the applicant if he has formerly been imprisoned in regard to a cognizable offence, probability of the applicant to escape from the trial. After considering such factors, the Court may or may not grant accused the anticipatory bail.
Procedure to apply for Anticipatory Bail: The application for anticipatory bail can be filed only in the Sessions Court or the High Court. The accused shall along with his Counsel file for an anticipatory bail in the concerned Court affixing the relevant affidavits, copy of FIR, and Vakalatnama signed by the accused. Once the Court has contended merits of the case, a notice is issued to the opposite parties by the Court and the date of hearing is provided. In the hearings, once the Court is convinced that the accused does not have any criminal records, pose any threat to the public at large and shall be present before the concerned authority as and when required, the anticipatory bail is granted to him on certain terms and conditions as the Court think its fit.
Conditions on which an Anticipatory Bail may be refused: Section 439 of the Code of Criminal Procedure contains provisions with regard to an annulment of Anticipatory Bail. The power to cancel the Anticipatory Bail lies with the Court that grants the same. If there lies a probability of the accused absconding on him getting a bail when there are chances that the accused may influence the further course of the investigation to his advantage and if it can be made out prima facie that the accused is at fault, the application for anticipatory bail may be rejected.
The duration for which the anticipatory bail is granted lies at the discretion of the Court. An anticipatory bail that is granted by the Court remains operative till the cessation of the trial until and unless it is canceled by the Court itself. In certain cases, once the duration of the anticipatory bail expires, the Court may even extend it.
- INTERIM BAIL: Interim Bail is a provisional or temporary bail that is granted by the Court till the time an application for regular or anticipatory bail remains pending before the Court. This bail is granted for a short period of time. However, this bail cannot be stretched by the accused in an attempt to evade the judicial process.
When can an interim bail be granted: When the application for the anticipatory bail remains pending before the Court, the Court may issue an interim bail as per Section 438(1) of the Criminal Procedure of Code. If the accused’s plea for interim bail gets rejected in the Court along with the anticipatory bail, the police shall be free to arrest the accused even without a warrant. Section 438 of the Code of Criminal is known to provide for the provision of interim bail pending disposal of an application for anticipatory bail but not expressly. This provision is congruous to the fundamental right of life and liberty as mentioned under Article 21 of the Indian Constitution. Interim Bail may be granted when the Court has contended with the fact that the motive of the accusation against the accused person is to harm and mortify his reputation. It acts as an efficacious check against the corrupt exercise of arrest by the police.
Cancellation of Interim Bails: It needs to be understood that the standard for cancellation of bail and criteria for refusal of bail are entirely two different things. The order granting refusal of bail should contemplate on the balance between the conflicting interests of both the parties and also the interest of the society at large. Very compelling and inordinate conditions are imperative for an order that would direct the cancellation of an interim bail application. In general, the cancellation of an interim bail may be on the ground of a supposed intervention in the due course of the case, chances of evading the trial process, or misuse of the concession period granted to the accused in any manner.
The principal purpose of the bail provisions mentioned should not be to apprehend and arrest an accused but to make sure that the person is efficaciously appearing for his trials before the concerned legal authority. At the same time, it would be discriminatory and prejudiced to bereave an accused of his basic right to liberty at the time when the criminal proceedings against him remain pending before the Court. The emancipation of an accused on bail should be done on pertinent cogitation and encumbering rational conditions that would be important and compelling to the accused, his family, and the society at large. It is therefore of significant importance for the Court to take into consideration various facts and circumstances of the case and impose reasonable conditions and finally pass a suitable and relevant order.
- John, Difference between regular bail, interim bail and anticipatory bail, PATHLEGAL (Sep 7, 2017), https://www.pathlegal.in/Difference-between-Regular-Bail,-Interim-Bail-and-Anticipato-blog-1260846.
- Mahak Gandhi, Bail under CrPc, ITJ (July 21, 2019), http://lawtimesjournal.in/bail-under-crpc/.
- KumailHaider, The Basic Rule of Bail and SafooraZargar’s Case: Stretching Law and Facts Thin, THE LEAFLET (June 16, 2020), https://theleaflet.in/the-basic-rule-of-bail-and-safoora-zargars-case-stretching-law-and-facts-thin/.
- Prahlad Singh Bhati v. N.C.T., Delhi &Anr., AIR 2001 S.C. 324
- Saba, Criteria for cancellation of bail are entirely different from criteria for refusal of bail, THE SCC ONLINE BLOG (May 03, 2018), https://www.scconline.com/blog/post/2018/05/03/criteria-for-cancellation-of-bail-are-entirely-different-from-criteria-for-refusal-of-bail/.
- Shivi,Meaning, Concept and Types of Bail in India, LEGISTIFY (July 04, 2018), https://www.legistify.com/blogs/view_detail/meaning-concept-and-types-of-bail-in india/#:~:text=Bail%20denotes%20the%20provisional%20release,before%20the%20court%20for%20release