No person shall be deprived of his life or personal liberty except according to the procedure established by Law.
In general, the term bail means the temporary release of an accused person on a temporary basis. As the term bail has been derived from the French word bailer which means to deliver or to give. The term bail has been used for a long time. As defined in the oxford dictionary bail is the absolution of an accused person temporarily awaiting the trial or a sum of money is lodged by the accused person as a guarantee for his appearance in the court. The provisions regarding the bail and bonds have been specified from section 436 to 450 of the Criminal Procedure Code. These provisions envisaged in the code gives the brief regarding the provisions of the bail. The concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released on a temporary basis but needs to appear in court whenever required by the court. The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from the police custody.
The word 'Bail' is adopted from the old French verb 'baillier' which means to 'give or convey'. Bail in English Common law is the liberating or setting at freedom a man captured or detained on security or on surety being taken for his appearance on certain day and place named.
The Criminal Procedure Code, 1973 talks in details about the bail process and how it is obtained. However, it does not define bail. Section 2(a) Cr.P.C. says that bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force, and non-bailable offense means any other offense.
Bail is the money a defendant pays as a guarantee that he or she will show up in court at a later date. For most serious crimes a judge or magistrate sets bail during an arraignment, or in federal court at a detention hearing. For minor crimes bail is usually set by a schedule which will show the amount to be paid before any court appearance (arraignment). For more serious crimes, the amount of bail is set by the judge at the suspect’s first court appearance.
Law students often ask with reference to Section 436 proviso where indigent person instead of bail can execute bond and Section 436A where the under trial prisoner can be released on personal bond, what is the exact difference between bail and bond? What is personal bond?
The object of arrest and detention of the accused person is primarily to secure his appearance at the time of trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonably ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the release of the accused person on bail are aimed at ensuring the presence of accused at his trial but without unreasonably and unjustifiably interfering with his personal liberty.
The idea of bail rises up out of the contention between the 'police control' and to limit the freedom of a man who is affirmed to have perpetrated a wrongdoing and the assumption of blamelessness to support him. Bail is the conveyance of captured individual to his sureties upon their giving security for his appearance at an assigned place and time, to the purview and judgment of the court. The surety is named 'bail' in light of the fact that the individual captured or detained is put in the care of those (surety) who get themselves or progress toward becoming bailer for his due appearance when required. Surety must be those people who have specialist to bail the captured individual to show up under the watchful eye of the court on a specific date. It is upon the obligations of those sureties that the individual captured or detained is bailed, i.e., set at freedom until the point when the day designated for his appearance. The impact of allowing bail isn't to set the detainee free from prison or guardianship, yet to discharge him from the care of law and to endow him to the authority of his sureties who will undoubtedly deliver him to show up in the court at a predefined time and place. The important end product is that it is interested in the sureties to grab the detainee whenever and any release themselves by giving him over to the authority of law and the outcome would be that he (the detainee) would be then detained.
Chapter-XXXIII of the Code of Criminal Procedure deals with various provisions as to bail and bonds. It lays down as to when bail is the right of the accused, when bail is the discretion of the Court, in what circumstances said discretion can be exercised, what are the terms and conditions which would be required to be observed by the accused, who has been released on bail and what powers are vested in the Court in the event of accused committing default of bail order.
Besides Chapter XXXIII Section 436 to 439, another provision, which deals with the concept of bail is Section 167 of the Code of Criminal Procedure, which is generally termed as “Default Bail”. While considering the aspect of bail, both these provisions are to be studied in the context of each other.
The Art.21 of the Constitution of India declares that “No person shall be deprived of his life or personal liberty except according to procedure established by law. The concept of bail is closely related to Article 21 of the Constitution. It safeguards the personal liberty of a person from his detention.
It is a direction given by the Court (any Court within the country) to release a person who is already under arrest and kept in police custody. For such Bail, a person can file an application under Section 437 and 439 of the CrPC.
Bail granted for a temporary and short period by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.
A direction issued to release a person on Bail even before the person is arrested. In this situation, there is apprehension of arrest and the person is not arrested before the Bail is granted. For such Bail, a person can file an application under Sec. 438 of the Code of Criminal Procedure (CrPC). It is issued only by the Sessions Court and High Court.
The bailable offence is the type of offence in which an accused person is granted bail.This type of offences is generally punishable by the court with less than three years of imprisonment. In the case of bailable offence accused can ask his release as of a right.
The non-bailable offence is the type of offence for which an accused person is not entitled to get bail. These are the offences which are non-bailable nature and are not shown as bailable under the first schedule of the code. These offences are grievous in nature when compared to bailable offences.Generally in the case of non-bailable offences the punishment is three years or more.
Section 436 provides for the release on bail of a person accused of a bailable offence.Under this section, bail is the right of person, who has been accused for commission of offence, which is bailable in nature. This provision casts a mandatory duty on police official as well as on the Court to release the accused on bail if the offence alleged against such person is bailable in nature. This section further makes it clear that whenever any person, accused of bailable offence is arrested and applies for bail, then the police official or the Court, as the case may be, has no other alternative except to allow such application. This section further makes it clear that if the person applying for bail, is booked for commission of bailable offence, then neither the Court nor the police official can refuse to release such person merely.because of non availability of surety. Similarly, it is also the duty of Court as well as police official to release the accused of bailable offence on his.Personal Bond if such person, inspite of order of surety, fails to furnish surety within 7 days from such order. While casting such duty on police official as well as on Magistrate, law raises presumption in favour of the accused to the effect that the accused is so indigent and poor that he cannot arrange for a surety and therefore, after that period he has to be released on his personal recognizance.
By Criminal Procedure (Amendment) Act, 2005 sub-section (1) Section 436 was amended to make a mandatory provision that if the arrested person is accused of a bailable offence is an indigent and cannot furnish surety,the courts shall release him on his execution of a bond without sureties. Legislature by Criminal Procedure (Amendment) Act, 2005 inserted Section 436A which lays down the maximum period for which an under trial prisoner can be detained.
Bail in such cases depends upon the discretion of the court or the police officials that they may release the person arrested for non-bailable offences until and unless there exists any reasonable grounds or apprehension that person arrested has committed any crime and is not guilty of any criminal liabilities which is punishable with life imprisonment or the death penalty.
Under section 437 When a person is accused of, or suspected of, the commission of any non-bailable offence, is arrested or detained without warrant or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but such person shall not be so released,
Section 438 of Cr.P.C. deals with anticipatory bail. The anticipatory bail is nothing but a bail in the event of arrest, when any person has an apprehension or reason to believe that he may be arrested of an accusation of having committed a non-bailable offence then he may apply to High Court or Court of Sessions for direction that in the event of arrest he shall be released on bail. Therefore, the said powers are exclusively vested with the Court of Sessions and High Courts. For considering the application for anticipatory bail the prerequisite condition is that the offence must be non-bailable. There must be a sufficient reason to believe that the applicant may be arrested in said accusation. The Sessions Court or the Hon'ble High Court considering the nature and gravity of accusation, the antecedent of applicant, the possibility to flee from justice and whether the accusation has been made with object of injury or humiliating the applicant by having him arrested may either reject the application or issue an interim order for the grant of anticipatory bail. When the respective court has not passed any interim order or has rejected the application then the officer-in-charge of police station has right to arrest the accused without warrant. The interim order alongwith the seven days notice must be served to the Public Prosecutor and Superintendent of Police with a view to give them an opportunity for hearing on the application. The presence of applicant seeking anticipatory bail shall be obligatory at the time of final hearing of application and passing final order by the Court. But the Public Prosecutor must have to apply for the same.
Section 438(2) of Cr.P.C. provides that, the High Court or the Sessions Court may also impose some conditions while granting the application. The conditions may be as follows :
a) that the persons shall make himself available for the interrogation by police officer as and when required;
b) that the person shall not directly or indirectly make any inducement, threats or promise to any witness;
c) that a person shall not leave India without previous permission of the Court.
In Balchand Jain Vs. State of M.P the Court observed that : “ anticipatory bail means `bail in anticipation of arrest'. The expression `anticipat ory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. When a competent court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative”.
The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Section 438 applies only to non-bailable offences. Anticipatory bail being an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of judicial service, namely, the Court of Sessions or the High Court. What the section contemplates is not anticipatory bail but merely an order releasing an accused on bail in the event of his arrest. There can be no question of bail unless a person is under detention or custody. The object of s. 438 is that the moment a person is arrested, if he had already obtained an order from the Sessions Judge or the High Court, he would be released immediately without having to undergo the rigours of jail even for a few days.
An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested. The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
The Malimath committee gave its observation regarding the provision of anticipatory bail. They stated that the provision of section 438 is often misused by the people. Such misuse of the provision is illegal. The committee after the following observation suggested two conditions or requirements for the purpose of retaining the provision.
The following conditions are as follows:
Under section 437 of the code, it has been stated that a regular bail is available and granted to a person after the arrest when he is in the judicial or police custody, however in the case of an anticipatory bail is available to a person before the arrest or if the person has reasonable apprehension of arrest.
It can be concluded that the concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released on a temporary basis but needs to appear in court whenever required by the court. The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from police custody. These provisions envisaged in the code gives the brief regarding the provisions of the bail.