BAIL UNDER CODE OF CRIMINAL PROCEDURE

We all have been hearing about the different personalities being arrested and then given bail after a few hours or a day. From time immemorable in India, people have been hearing that the police arrested Salman Khan for the black buck case or the famous hit & run case and then, after a few hours he gets released on ‘Bail’.  As soon as this news flashes on the television sets, the internet goes on fire making all sorts of memes on Salman Khan.

What is bail actually?

Bail has not been defined under Criminal Procedure Code (CrPC), however in layman terms it means the provisional relief provided to the accused under certain conditions. Even in the Mughal period, there was some sort of bail for the prisoners which were called Zamanat. It can also be seen in Kautilya’sArthashastra where he mentioned that one should avoid pre-trial detention and therefore the concept of bail was prevalent in ancient India also[1]. Getting bail is one of the rights of the accused in a civil case while it is the discretion of the bail granting authority in a criminal case.

Sections 436-450 of the CrPC deal with provisions relating to bail, bailable and non- bailable offences. Section 2(a) of CrPC defines bailable offences as the offence that has been shown in the First Schedule as bailable or which is made bailable by any other law for the time being in force. The first part of first schedule of the CrPC deals with the offences given under IPC which states that an offence in order to be bailable would have to be an offence punishable with imprisonment for less than three years or with fine only.

Bailable offences are regarded as less grave and less serious. As per Section 50 of CrPC Whenever a person is arrested without warrant, it is the duty of the police officer to communicate the full detail of the offence for which the person is arrested. Also, if the offence for which the person is arrested is a bailable one, it is the duty of the police to inform that he is entitled to be released on bail after giving surety[2].

A person needs to fill Form No. 45 given in the first schedule to apply for the bail. The second part of the First Schedule of CrPC defines non-bailable offence as an offence which are punishable with death, imprisonment of life or imprisonment for more than seven years. A person accused of a non-bailable offence does not have right to be released on bail but the bail can be granted at the discretion of the court, subject to certain conditions given in Section 437 of CrPC[3]. Court has the power to cancel the bail even at a later stage under section 437(5) and 439(2) of the CrPC and can also give directions to the police officer to arrest the person and keep in police custody.  In India, there are commonly three types of bail namely regular bail, interim bail and anticipatory bail.

REGULAR BAIL

Such type of bail is granted to a person when they had been arrested and were kept in police custody. The accused is released only to be taken for a trial. Regular bail is given under section 437 & 439 of the Code of Criminal Procedure.

INTERIM BAIL[4]

Interim Bail is granted for a short period of time. It can be granted when there is a pending application for anticipatory or regular bail before the Court, or before the hearing. It is always conditional in nature. There are two conditions where an interim bail expires: (I) If the accused fails to pay the deposit required for continuing the bail, and. (II) If the pending application for regular bail or anticipatory bail is heard by the Court, and they have given their decision.

ANTICIPATORY BAIL

Under this, a person attempts to obtain a bail in expectation of an arrest. a person attempts to obtain a bail in expectation of an arrest. Section 483 of the code reads, “a procedural provision concerned with personal liberty of each individual alleged to have commit an offence”. This bail serves to be a blessing where the rival parties in the political system of the country try to falsely charge the opposition for mere cause of vote. The provision was inserted for the protection of the rights of Indian citizens but, it has been observed in the recent times that it is being heavily misused by the influential people and the criminals with high networks and contacts with politicians. Anticipatory bail in India has now become the most abused section of CrPC. In Adri Dharamdas v State of West Bengal, the Court held that the power to grant anticipatory bail is extraordinary and can be exercised only in exceptional cases where the Court believes that the applicant is falsely implicated and is entitled to bail.

Section 167(2) of the CrPC empowers the Magistrate to hold a person in custody if the investigation is not completed within 24 hours but it lays down the condition for which custody is authorized. According to this Section, if the investigation is not completed within the stipulated time, it becomes mandatory for the court to grant bail irrespective of the accusation on him and it becomes default bail.

CONCLUSION

Bail was introduced to grant a remedy to an innocent person. The procedure of bail takes place while the trial of the accused person is still undecided. Grant of bail, in any case, depends upon the nature of the offence accused of. The working of the bail system in India was highlighted in the case of Hussainara Khaton vs Home Secretary, 1980. It was brought to the attention of the court that thousands of people were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6 months to a year. These people had no money to pay the bond money for bail. In this respect, J Bhagwati observed that the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties[5]. When a court has reason to believe that an accused person is likely to commit similar or any other offence if he is enlarged on bail, it would refuse bail whatever other considerations there may be in favour of the accused. The concept of bail and personal liberty go hand in hand and therefore every individual, including the accused, has the right to seek bail to get themselves released from custody unless they are proven guilty. The right of bail is not absolute and the competent court can cancel the bail if the person does not comply with the conditions of the bail bond or acts in a manner that hinders the process of justice.


[1]  Vasundhara Singh, Concept of bail & its relation with Fundamental rights, https://www.lawyersclubindia.com/articles/the-concept-of-bail-and-its-relation-with-fundamental-rights-14195.asp, visited on 31-07-2021 at 17:55hrs.

[2] Sagar Gujjar- Bailable & Non-Bailable offence, Bailable and Non-Bailable offence (legalserviceindia.com), visited on 31-07-2021 at 15:31hrs.

[3] IBID.

[4] Anjani Tewary – Types of Bail in India, TYPES OF BAIL IN INDIA – Aishwarya Sandeep, visited on 31-07-2021 at 16:13hrs.

[5]Biswaranjan Panda-The basic rules for grant or denial of bail UNDER CR.P.C.,https://www.lawyersclubindia.com/articles/the-basic-rules-for-grant-or-denial-of-bail-under-crpc-8996.asp, visited on 31-07-2021 at 17:14hrs.

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