The Basic Concept of Bail - Advocate Tanwar

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.”

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

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.

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.

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)

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.

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)

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)

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: