The Basic Concept of Bail

Meaning

• The term Bail has not been defined anywhere in the Code.
• Black’s Law Dictionary– “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 judgment of the court”
• Law Lexicon– “A security for the appearance of the accused person on giving which he is released pending trial or investigation.”

The object of granting bail

• Generally, a person is put behind bars in order to ensure the following two things:

1. Presence at the trial; and
2. Availability to receive the sentence.

• However, in certain cases, bail can be granted if the Court is assured that by detaining the accused no reasonable purpose would be sought and his appearance could be sought otherwise also.
• Granting of bail goes in line with the principle that an accused is presumed innocent until proven guilty.
• To prevent the accused from being subjected to the psychological and physical deprivation of jail life.
• To ensure that the burden of the arrest of the accused does not have adverse inference on the innocent family members.
• If the accused is not likely to abscond, in such cases granting bail should not be an issue.
• The object of detention pending criminal proceedings is not punishment and the law favours allowance of bail, which is the rule, and refusal is the exception.

Bailable & Non – Bailable Offences– S.2(a)

Bailable Offence

• An accused charged with a bailable offence has the right to be released on bail under section 436 of the Cr.P.C.
• However, the Court is empowered to refuse the bail for a bailable offence if the accused fails to comply with the conditions of the bail bond.
• Examples:
• Voluntarily causing hurt. (S.323)
• Causing miscarriage. (S.312)
• Attempt to commit suicide. (S.309)
• Being a member of an unlawful assembly.
• Bribery in relation to elections.

Non – Bailable Offence

• An accused charged with a non – bailable offence has no right to be released on bail, however, his release on bail rests on the discretion of the Court to hear his bail application.
• The Court may refuse to grant bail in a non – bailable offence if the credential of the accused/applicant is doubtful.
• Examples:
• Murder (S.302)
• Dowry Death (S.304-B)
• Rape (S.376)
• Kidnapping (S.363)
• Attempt to murder. (S.307)

First Schedule of Cr.P.C.

• It is to be noted that the Code has not given any precise criterion or test to determine whether an offence is bailable or non-bailable.
• However, the first schedule provides for the classification of bailable and non-bailable offences.
• It provides that an offence punishable with imprisonment for three years or more shall be considered as a “non-bailable offence”.
• The schedule refers to all offences under IPC and classifies them as bailable and non-bailable.

Two Cases pertaining to release on bail

• Where release on bail is imperative.
• Where the Court has discretion in granting bail.

Cases where release on bail is imperative

• Cases other than non-bailable offences. – S.436
• If an investigation is not completed in 60/90 days. – S.167
• No reasonable grounds for believing that the accused is guilty of an offence, but reasonable grounds for further inquiry. – S. 437(2)
• Trial not concluded in 60 days – S.436(6)
• Release on bail at the conclusion of trial but before judgment is delivered. – S.437(7)

Cases where the Court has discretion in granting bail

• Bail in cases of non-bailable offences – S.437(1)
• No Bail in case of offence punishable with the death or imprisonment for life – S.437(1)(i)
• No bail for habitual offender or person previously convicted of serious offence – S.437(1)(ii)
• Bail shall not be rejected merely because the accused required to be identified by witnesses during an investigation – S.437(1) (Proviso 3)
• Grant of bail with conditions – S.437(3)
• Powers of High Court or Court of Sessions to grant bail – S.439
• Approver in custody not to be released on bail – S.306(4)(b)

Anticipatory bail – S.438

Cancelation of Bail

• Provisions – The Power to cancel bail is provided under section 437(5) and section 439(2).
• Power – Only the Court who has granted the bail has the power to cancel bail and not the Police.
• Proof – In case of cancellation of bail in a criminal case, the case is not required to be proved beyond a reasonable doubt.
• Conditions/Cases where bail can be canceled – The following is a non-exhaustive list of contingencies upon happening on which, the bail can be cancelled:
• Commission of offence;
• Threatening the witnesses;
• Tampering with the evidence;
• Likely to abscond to a foreign country;
• Commission of acts of violence against Police or others in the Court.
• Hamper investigation.
• Locus Standi – The power to cancel the bail or the application can be filed by the following persons:

1. State;
2. Prosecution party;
3. The court on its own motion i.e., Suo Moto

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