Bail under the Code of Criminal Procedure – is it a Matter of Right
Contributed By: S. Prabhakar
Email ids: sprabhakar@simplybiz.in
Bail is a Rule and Jail is an exception. This is in line with Article 21 of the Indian Constitution which guarantees the protection of life and personal liberty to all citizens of India. In this article we will examine provisions relating to Bail.
Article 21 of the Constitution of India guarantees the `right to life and personal liberty’ to every individual and no one should be deprived of it except according to the procedure established by law. It guarantees the fundamental right to live with human dignity and personal liberty. As per the fundamental principle of the Universal Declaration of Human Rights a person is assumed to be innocent unless proven guilty. Therefore, no one shall be deprived of personal liberty unless specified by a fair and just procedure. Bail is an essential element of any criminal justice system, as it guarantees the right to a fair trial for the accused. Bail is a mechanism that secures liberty to the accused without providing any unjustified benefit to them. According to the Supreme Court of India, Bail is a measure to balance the personal freedom of the accused and the public interest.
History of Bail
The history of Bail can be traced back to as early as 399 BC when Plato first tried to create a bond to free Socrates. In medieval times, the circuit courts in Britain created a system of bail. Kautilya’s Arthashastra also mentioned that avoiding pre-trial detention was ideal. During Mughal period in the 17th century, bail was practised in the form of ‘Muchalaka’ and ‘Zamanat’. At present, bail is governed by the Code of Criminal Procedure, 1973.
What is Bail?
Bail has not been defined under the Criminal Procedure Code, 1973. ‘Bailable Offence’ and ‘Non-Bailable Offence’ have been defined under Criminal Procedure Code (Cr. PC).
As per Oxford dictionary bail means “temporary release of an accused person awaiting trial, some time on condition that a sum of money is lodged to guarantee his appearance before in Court.
Bailable offences and obtaining bail
As per Section 2(a) of CrPC bailable offence means an offence that is classified as bailable in the First Schedule of the CrPC, or which is classified as bailable under any other law. An accused can claim bail as a matter of right in case of a bailable offence. According to Section 50 of CrPC, whenever a person is arrested without a warrant, the police officer must communicate the details of the offence for which the person is arrested. The police officer must also inform the person his right to be released on bail if the offence they committed is bailable. According to Section 436 of CrPC, whenever a person accused of a bailable offence is arrested without a warrant and is willing to execute a bail bond, he must be released on bail. The police officer or any other authority has no right to reject the bail if the accused is ready to furnish bail. The discretion to decide the bail amount lies with the Police officer or the Court.
The Bail bond may contain certain terms and conditions, like the accused not leave the territorial jurisdiction of the state without the permission of the court or police officer, the accused shall give his presence before the police officer every time he is required to do so and non-tempering of evidence.
The court is empowered to refuse bail to an accused person even if the offence is bailable, where the person granted bail fails to comply with the conditions of the bail bond.
Non-bailable offences and obtaining bail
A non-bailable offence is defined as any offence which is not a bailable offence. A person accused of a non-bailable offence cannot claim bail as a matter of right. Non-bailable offences are serious in nature and bail can only be granted by the competent court. The application for bail shall be filed before the Magistrate and shall be listed for hearing. Police shall present the accused in court and after the hearing the magistrate may pass such orders, as he thinks fit.
A person accused of non-bailable offences can be granted bail provided the accused attracts the following conditions:
- There are reasonable grounds to believe that he has committed an offence punishable with death penalty or life imprisonment.
- That the accused has committed a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment of seven years or more or if the accused been convicted on two or more instances of a cognizable and non-bailable offence.
While making a decision regarding grant of bail, the following circumstances are taken into considerations:
- The enormity of charge and nature of accusation;
- The nature and gravity of the circumstances in which the offence is committed;
- The position power and status of the accused with reference to the victim and the witnesses
- The severity of the punishment which the conviction will entail;
- The danger of evidence being tampered with;
- The likelihood of accused fleeing from justice;
- Probability of the accused committing more offences;
- The health, age and sex of the accused person etc. The law gives special consideration in favour of granting bail where the accused is under sixteen years of age, a woman, sick or infirm person, or if the court is satisfied that it is just and equitable, for any other special reasons, to grant bail rather than refuse bail.
The Magistrate will not grant the bail if:
- The punishment for the alleged offense is 7 years or more
- in case of sedition
- the accused did crimes against the human body like rape and murder.
- in the case of abatement or criminal conspiracy
- Serous crime against the property
Types of Bail
- Regular bail
In regular bail the arrested person is released on the basis of the orders of the court on furnishing bail bond. An accused can apply for regular bail under Section 437 and 439 of CrPC. - Interim bail
Interim bail is a temporary and short-term bail when regular or anticipatory bail application is pending before the court. Interim bail is conditional bail and it can be extended on payment of the amount required for continuing the bail. If the interim bail expires and the person is failed to pay the amount for continuing the bail, the person can be taken into custody. - Anticipatory bail
Section 438 of Cr. PC deals with anticipatory bail. As per the recommendation of the Law Commission of India, “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him to first to submit to custody, remain in prison for some days and then apply for bail.”
Contrary to ordinary bail, anticipatory bail meaning allows a person to be released on bail even before arrest is made. In Gurbaksh Singh Sibia vs the State of Punjab, a five-judge Supreme Court bench ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty). It was observed by the Hon’ble Court, “It may perhaps be right to describe the power (of anticipatory bail) as of an extraordinary character. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise.”
In anticipatory bail the Court orders for pre-arrest bail to a person accused of a crime. If a person thinks that he will be arrested in a criminal case or a FIR can be filed against him, the person can submit the application in the court for anticipatory bail. After the grant of anticipatory bail, the police cannot arrest the person.
Factors considered before grant of anticipatory bail
- There should be reasonable apprehension of the arrestof the accused person
- Intention behind accusation is whether to injure or humiliate the applicant by arresting
- The allegations against the Applicant are of vague or general nature.
- The applicant satisfies to the Court granting Anticipatory Bail that he hails from a respectable family, has deep roots in the society and is not likely to abscond or evade the process of the Court or in any way hamper the investigation.
- Previous record of accused, any imprisonment on conviction in respect of non bailable offence,
- Chances of repetition of similar or other offences
- Application for anticipatory bail must be done before arrest.
- The offence should be bailable offence
- The accused should not be a habitual offender.
- The possibility of accused fleeing from the country after the grant of anticipatory bail.
- Apprehension of tampering with evidence, witnesses and threatening the complainant.
Conditions imposed on the grant of anticipatory bail
- The person has to make himself available at the time of investigation and proceedings
- The accused person should not influence the witness of the case
- The accused should not temper with the evidence
- Accused should not leave the country and the court may order to surrender the passport
- And any other condition which the court thinks necessary.
Sometimes, an application for anticipatory bail may go against the person, as it might alert an investigation agency regarding the involvement of that person in a crime.
Cancellation of bail
As per Section 437 (5) of CrPC, the court which has granted bail can cancel it, if found necessary under certain conditions.
- The power to cancel all types of bails lies with the court, not with the police officer.
- The court of the magistrate cannot cancel the bail granted by the police officer.
- High court and session court has the power to cancel the bail granted by a police officer.
Under Section 439 (2), Sessions Court, High Court, or Supreme Court can, suo moto, cancel the bail granted to the accused and transfer the accused to custody. Under Section 389 (2) an appellate court can also cancel the bail of the accused and order the accused to be arrested and sent to custody.
Refund of amount of Bail security
The security amount deposited will be returned to the accused when the case is completed in court. But if the accused fails to comply with the conditions of the bail, the security amount may be forfeited. The court can also impose additional charges on the accused in case of breach of bail.
Inordinate delays in granting bails
In India a large number of cases are filed in various courts for obtaining bail to the accused. Not only Lower and High courts but even in Supreme Courts 33% of the cases filed are for Bail. The general tendency of the Investigative agencies is to seek custody for interrogation and to ensure that the influential accused does not tamper with the evidence and influence witnesses and the Courts are inclined to deny bail and given custody. More specially in criminal cases bail is granted in very exceptional cases. Many poor and illiterate accused do not have resources to hire lawyers to seek bail and they languish in jails. In many cases even after filing of the charge sheet many undertrials continue to be in judicial custody as undertrials. It is observed that in many cases many undertail have spent more than 50 to 75 percent of the jail terms they would have served have they been proved to be guilty. After spending many years in the prison, many of the undertail are acquitted and no one can return them the many productive years they lost languishing in prisons. These cases are classic examples of `Justice delayed in justice denied’. That really emphasises the requirement of disposing of bail application expeditiously and bail be given as a matter of right and rule rather than an exception.
The bail provisions have gone a long way in ensuring the right to life and personal liberty as enshrined in Article 21 of The Constitution of India and expeditious disposal of cases will go a long way in giving reassurance to common men of their constitutional right.
*The Author S. Prabhakar, is a Fellow member of the Institute of the Company Secretaries of India, Chartered Secretary from the UK, Lawyer, and Registered Insolvency Professional.
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