Understanding The Provision Of Bail

The right to life and personal liberty to every individual has been given under Article 21 of the Constitution of India. Until a person has been proved guilty he or she is assumed to be innocent. Therefore, personal liberty shall not be restrained even of an accused by detaining him illegally. Bail is the right of every accused. The basic rule is that bail is a rule and jail is an exception. In this article, we have discussed the various provisions relating to bail under the Code of Criminal Procedure Act, 1973. The process of application and hearing of bail, and types of bail have been discussed in the following article.

Bail is the conditional liberty of an accused who is yet to be tried. It can also be described as the judicial release of the accused.

The term bail has not been defined in the Code of Criminal Procedure. In bail, restrictions are imposed on the accused where he is compelled to appear before the court as and when required. Bail is provided to the accused with or without sureties. Under sections 436-450 of the Criminal Procedure Code, bail and bonds are provided. The power of granting bail lies with police as well as courts. The important object of bail is ensuring attendance of the accused before the court during trial, as bail is available to the accused whose trial is pending. A regular bail is taken when an offence is committed by the accused and the accused has been arrested. Any individual suspected of committing an offence can also be arrested. Bail can also be cancelled if the accused fails to comply with provisions and provide surety or fails to appear when required by the court. The power of cancelling bail lies with the court that granted the bail in the first place.
 

As the name suggests, Bailable offences are offences where bail is granted. Bailable offence has been defined under Section 2(a) of the Code. Generally, bailable offences are those offences that are punishable with imprisonment of less than three years by the court. Whereas, non-bailable offences are offences where the accused is not entitled to bail and can only be granted bail on certain conditions. Non-bailable offences are grievous in nature when compared to bailable offences. A court cannot exercise its discretion while granting bail in a bailable offence. Therefore, bail becomes mandatory in the bailable offence. Whereas a court can exercise its discretion in case of a non-bailable offence.

Bail can be mainly categorised into regular bail, anticipatory bail, and interim bail. Section 436 provides cases where bail can be taken. Following are the types of bail.
 

1. Regular Bail- Section 436 makes provisions in cases where bail can be taken. When an individual is accused of a non-bailable offence, on following conditions he can take bail with or without surety. 

• When such an individual is arrested or detained by the officer in charge of the police station without a warrant.
• Such individuals are made to appear or brought before the court.
• When such an individual is ready at any time when he is in custody of such a police officer who has arrested him or during any stage of proceeding before the court to give bail.

Bail in respect of a bailable offence depends on the punishment that has been prescribed for the offence committed by the accused instead of the power or jurisdiction of the magistrate.
 

2. Interim Bail/ Bail in case of non- bailable offence- There is no specific provision or definition of interim bail in the Criminal Procedure Code. However, in Lal Kamlendra Pratap Singh v. State of U.P and Ors, 2009 it was held by the Supreme Court that interim bail can be granted even if disposal of a bail application is pending. Granting interim bail prevents any irreparable loss suffered due to arrest and detention faced by the accused.

Section 437 makes provision for bail in case of a non-bailable offence. As mentioned earlier, bail in case of non-bailable offence provided the following conditions are fulfilled:
 

• When an accused or individual is suspected to commit any non-bailable offence, has been detained or arrested or has been brought before the Court of Session or High Court can be granted bail; provided there exist no reasonable grounds to believe that he is guilty of any offence or punishable with death or life imprisonment.
• In case the accused has committed a cognizable offence and the accused has been previously convicted of the offence with death, life imprisonment, or imprisonment for more than 7 years, or has been convicted of two or more non-bailable offences earlier.
   

However, if such an individual or accused is under the age of sixteen years, a woman, sick or infirm shall be released on bail even though a non-bailable offence has been committed and such offence is punishable with death or life imprisonment or has been previously convicted.
 

3. Anticipatory Bail- Under section 439 provisions of bail before the arrest has been made are given. Anticipatory bail is pre-arrest bail as the bail is taken prior to the arrest. When an individual apprehends the arrest of beings falsely accused of any offence can apply to the High Court in the concerned jurisdiction for anticipatory bail under this section of the Code. Anticipatory bail was made where politicians before elections or officials before any important event apprehended arrest by thinking that they would be falsely charged with an offence. In order to apply for anticipatory, ail,

• A reasonable apprehension of arrest must exist. Only if the court is of the opinion that the individual satisfies the court of his non-involvement in the case falsely then the court can grant anticipatory bail to such individual.
• It is only in non-bailable offences one can be granted anticipatory bail.
• As the name suggests, the accused is required to make an application for anticipatory bail before his arrest.

Anticipatory bail can be granted by both the High Court or the Court of Session. However, an application for the anticipatory bail must be first made in the sessions court to which the appeal lies to the High Court.

Section 439 makes special provision where accused can be released on bail while such accused is in custody by the order or direction issued by the High Court or Court of Session. If such an accused has committed an offence punishable with death, life imprisonment or imprisonment of more than seven years, the High Court or Court of Session can direct any condition imposed by the Magistrate to be set aside.

Often an application is made by an individual who has been convicted of a crime or has been arrested for committing an offence. Form 45 of the Code of Criminal Procedure in the second schedule, provides for filing bail applications in bailable offences. With the help of a legal professional or lawyer, one can file the bail application. An application for bail can be made before his trial or while making an appeal after conviction. The Court hearing the bail considers the evidence in respect of the application of bail as well as the nature of the crime. Apart from these factors, the court also considers the financial condition of the individual and his history. Before granting the bail, the judge records reasons in writing based on which bail has been granted.

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