The term bail is nowhere stated under this code though the word bailable offences and non-bailable offences are defined under Sec 2(a) of this code.
According to Black’s Law Dictionary, bail is a process to release a person from legal custody by undertaking that he/she will have to appear at the time of the trial in the court.
As under the Oxford Dictionary bail is a temporary release of an individual who is waiting for his hearing and getting that bail, he has to deposit a certain sum of money by promising to appear in the court.
Section 436 to Section 450 of Chapter XXXIII of the Criminal Procedure Code states the provisions of bail and bonds. In Indian Criminal Law, bail is a legal right given to a person who is waiting for his trial or an appeal to release from jail for that period. The history of bail and bond can be identified from the era of 399BC when the famous Greek Philosopher Plato tried to form a bond for the release of Socrates. In the modern era, the concept of bail is derived from England, and now it is widely used across many countries’ laws, including India.
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In a country like India, every individual has a right to freedom and personal liberty. The state has a prescribed duty towards its people by protecting their rights. The concept of bail and personal liberty are interconnected; this guarantees the accused to access his rights to seek bail for his release from police custody until he is proven guilty. Article 21 of the Indian Constitution states that the personal freedom and liberty of a person cannot be infringed except the procedure laid down by the law.
The object of arresting a person and keeping him in custody is to secure his appearance at the time of trial and if he is guilty, then to assure that he is there to take the sentence. So, if the accused gives the surety to appear at the time of the trial and also being available for the penalty if found guilty, then it would be unfair for him to keep him under detention during the pendency of the criminal proceedings against him. He cannot be deprived of his liberty. The concept and the provisions of bail only focus on the presence of the accused at the time of trial without disregarding his liberty.
Types of Bonds
- Cash Bond: In this situation, cash is paid for bail. This amount is produced when the accused doesn’t appear in the court when the date has been given. There is no section for a refund of cash.
- Surety Bond: In this when the accused is not able to pay the cash for bail then a surety bond is issued by bail bondsmen. A third party has to pay the token to the bondsmen and the bondsmen charge significantly less for his services. If the accused doesn’t appear on the date given by the court then the bondsmen have to pay the entire amount of bond money in cash.
- Federal Bail Bond: The Federal Bond is given in a situation in which the crimes were committed outside the boundaries of the state. This bond is directly paid to the court without the involvement of bondservants. In federal bonds, both cash and property are accepted.
- Property Bond: In this bail bond accused offers property concerning bail. The accused can only provide those properties on which he has ownership. The court can have full authority on that property, and the court can also take a right if required.
Types of Bail
There are three types of bail in India which a person can apply for-
- Regular Bail: A person who is arrested or who is in police custody can apply for regular bail. A regular bail can be filed under Section 437 and Section 439 of the Criminal Procedure Code.
- Anticipatory Bail: A person requires anticipatory bail when he has sufficient reasons to believe that he is going to be arrested for a non-bailable offence. A person can apply for anticipatory bail under Section 438 of the Criminal Procedure Code. Anticipatory Bail can be granted either by the High Court or Session Court.
- Interim Bail: Interim bail is given for a short period. A person can apply for interim bail before the hearing for regular and anticipatory bail.
Bail under Bailable offence
When a person is not accused of a non-bailable offence and he is arrested by police in charge without any warrant or he is brought before the court then it is the police officer who has to release him. He has the right to take bail in bailable offences under Section 436 of the Criminal Procedure Code. If a person is arrested for a bailable offence then it is compulsory to grant bail to that person on a personal bond or with sureties.
In the case of Rasiklal vs Kishore Khanchand Wadhwani , the question of bail in a bailable offence is a conclusive and indomitable right. In the case of a bailable offence, there is no question of the decision in granting bail as the words of Section 436 are clear in this case.
In Deepak Khosla vs State of NCT of Delhi & Ors  the court of Delhi held that grant of bail for the bailable offence is regulated by Section 436 of the Criminal Procedure Code. Bail is compulsory in these cases and the person who applies for them has the right to get bail and the court doesn’t not have any discretion to deny the bail.
If the court or officer thinks that the accused is not able to present his bond within a week from the date of his arrest then it will be a sufficient ground for the court and the officer to assume that a person is an indigenous person and he should be granted bail without any surety. If any accused person fails to fulfil the conditions of bail bond then the court may not allow him to release him on bail.
Conditions in which bail is granted in bailable offences
- If there is sufficient reason to believe that the accused has not committed the crime.
- As per the court if there is sufficient reason to conduct further inquiry.
- If the person is not accused of any crime which is punishable with death, imprisonment, or life imprisonment up to ten years.
Bail under Non Bailable offences
A person can be released in case of a non-bailable offence under Section 437 of the Criminal Procedure Code when he is arrested without any warrant by an officer in charge or brought before the court other than High Court or Session court. The court or the police in charge has the power to grant bail in special conditions, but-
- If there is reasonable ground to believe that the person has been guilty of an offence whose punishment is life imprisonment or death then that person cannot be released on bail.
- If the person has committed a cognizable offence or he had been previously convicted of an offence punishable with life imprisonment or death or the person had been convicted for two or more cognizable offences punishable with imprisonment for three or more years but not less than seven years then that person will not be released on bail.
In the case of Mazahar Ali vs. State , the court held that bail is a basic rule and its denial is an exception. But at the time of granting of bail, the court must be satisfied that the order has been passed as per justice.
Conditions in which the court can grant bail in non-bailable offences
- If the accused is a child below the age of sixteen years, women, or sick persons then bail can be granted to them.
- The accused can get bail if there is a lack of evidence by the discretion of the court.
- If there is a delay in filing the FIR then bail can be granted.
- If there is any animosity between the accused and the person who filed the complaint then in that situation bail can be granted.
When any person believes that he is going to be arrested under a non-bailable offence in India then he can appeal to the High Court or Session court for anticipatory bail under section 438 of the Criminal Procedure Code. Anticipatory bail can be granted in a situation where a person is still not arrested, after the arrest one has to move according to the procedure of normal bail.
The lawmaker considering the false cases and acquisition inserted this provision under the law as earlier there was no such law to release a person before his or her arrest. Thus, this provision has the intention to prevent a person from harassment and disgrace if the report was made on a false basis.
But if the Court doesn’t find any reasonable ground to grant anticipatory bail then it has the power to cancel the bail. As in the case of the State of Madhya Pradesh vs. Pradeep Sharma , it was observed that it is the discretion of law that if the accused has escaped or not cooperated with the investigation then his anticipatory bail can be denied.
Conditions in which anticipatory bail is granted
- If there are reasonable grounds to think that the accused is arrested on a baseless ground.
- If the acquisition made against the accused is vague.
- If the name of the accused is not mentioned under FIR.
Cancellation of Bail
The cancellation of bail is given under two sections of the Criminal Procedure Code, 1973 which are Section 437(5) and Section 439(2).
Section 437(5) states that if any court has released any accused on bail under Section 437(1) and (2) then it can order that person to be arrested again if it is necessary.
Section 439(2) states that the High Court or Session Court gives direction to arrest the accused who is on bail if it is required.
Bail is a right given to a person who is arrested against a complaint; it is a conditional release of the accused with a promise to appear in the court whenever required. A person can apply for bail while his trial is pending. The main aim of bail is to prevent the person from mental harassment. With the help of bail, a person can temporarily be free from the custody of the police.
 AIR 2009 SC 1341.
 CRL.M.C- 663/2017.
 1982 CrLJ 1223, 1225 (J&K).
 AIR 2014 SC 626.
BY RUPAL SRIVASTAVA | BANASTHALI VIDYAPITH, RAJASTHAN