An analysis of the types of Bail Under the Criminal Procedure Code

Under the Indian Law, Bail is the rule and Jail is the exception. Due to such jurisprudence, Indian law has four different kinds of bail: Anticipatory Bail, Regular Bail, Post-Conviction Bail, Bail under section 436A and Default Bail. We shall look into each of these kinds of bail one by one.

            An anticipatory bail is applied for when a person is ‘anticipating’ an arrest. Court may or may not grant such immunity to him. While granting an anticipatory bail, court considers the applicant’s past criminal records, his chances of escaping the jurisdiction or repeating the same crime. This type of bail is incorporated under section 438 of CrPC. One example of an anticipatory bail is when actor Saif Ali Khan was expecting arrest due to the protests caused because of his series Tandav. He was given anticipatory bail.  

A regular bail for a bailable offence is granted under section 436. A regular bail for a non-bailable offence is granted during the trial and is given under sections 437 and 439. Under this section, a person may be granted bail if there are no chances of him threatening the witnesses, tampering the evidence and there are no chances of the accused fleeing from justice. A person may be released on the grounds of being sick, woman, less than 16 years of age or any other special reason. The ‘special reason’ is controversial. Many actors and actresses have been provided bail to shoot for their films. However, the satisfaction of triple tests mentioned above are of essence in giving a person bail and they must be wholly complied with. Other factors such as interests of the public, nature of offence, severity of offence and punishment and whether prima facie a case is made out will also be important in determining the bail status. However, the triple tests are the most important component for granting the accused bail.

            Another form of bail is post conviction bail. In case, a person is sentenced for a crime, he can apply for bail in the same court immediately. This can happen only when the person has appealed in the higher court. In such a case, the decision might be overturned by the higher court and it will be unjust for the accused to remain in jail for such a long period of time. Hence, bail is granted on the grounds of further appeal. In a case, where Salman Khan was an accused, he was granted bail on the technical ground. The lower court had sentenced him and appeal was going to be filed in the higher court but couldn’t be filed as the copy of judgement of lower court was not available. The application for bail was also filed and the bail was granted because it would be unfair for the accused to remain in jail when the appeal would be filed by the accused anyways.

            The fourth type of bail is default bail. This bail is given when the chargesheet has not been filed for about sixty to ninety days from the date of arresting the accused. In such a case, a bail can be granted on the 61st day or on the 91st day depending on the offence. The last kind of bail is enshrined under section 436A and is a fairly progressive provision. For example, if a person is accused of theft and the highest punishment for this crime is five years. Then, such a person cannot be kept in the jail for more than 2.5 years that is half of his punishment. This section has been brought to protect the undertrial prisoners who cannot afford good quality legal services and are helpless which makes them suffer in jail for years.

            If we analyze the overall affect of these bail laws, we find that the privileged persons benefit from it much more than a non-privileged section of the society. Laws have to be framed in such a manner that it has an equal and unbiased affect on people. The ones who are poor should be entitled to the same remedies as the ones who are privileged and famous.

Aishwarya Says:

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