Bail or Jail: What does the law say? Complete Analysis

bail in criminal case

BAIL MEANING: The term bail is derived from a French word “bailer” which means to deliver or to give. Bail is nowhere defined in Code of Criminal Procedure,1973 but there are provisions of Bail mentioned under sections 436 – 450 of the Criminal Procedural Code,1973.

Section 2(a) of Cr.P.C. defines Bailable and Non-bailable Offence.

Section 2(a)- “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and non-bailable offence means any other offence.

IMPORTANCE OF BAIL

The term Bail exists because the Indian Judiciary believes that a person accused of a crime is innocent until proven guilty. Bail is important to safeguard the rights of an individual and to provide them a way out of custody when there are sufficient proofs that the person wouldn’t be of any harm to the society when freed from detention. Various reasons mentioned below is why Bail is important:

  1. To help people avoid jail time as the detention is for convicted accused.
  2. Fundamental idea of our criminal justice system that the defendants are presumed to be innocent until proven guilty.
  3. Keeping people in jail ultimately is an expense that is to be paid by the State, which is quite expensive.
  4. To give an individual access to normal life as he/she hasn’t been proven guilty yet and has every right to move freely unless he/she is not a threat to the society.
  5. To avoid doing injustice with people who are completely innocent and have not committed any crime.

TYPES OF BAIL

There are three types of Bail. They are:

  1. Regular Bail
  2. Interim Bail
  3. Anticipatory Bail
  1. Regular Bail: Regular bail is a bail which is filed after the arrest of the accused person. This kind of bail can only be granted to an individual who has already been arrested and kept in police custody. Under Sections 437 and 439 of CrPC, gives the accused the procedure to be released from such a custody. Therefore, Regular bail is essentially the discharge of an accused from custody to make sure his presence at the trial.
  • Interim Bail: The term Interim bail is nowhere defined in CrPC. Interim bail is granted to an accused before the hearing for the grant of normal bail or anticipatory bail. The concept of Interim bail was introduced by the Hon’ble Supreme Court in 2009, stating that interim bail be granted pending disposal of bail application because arrest and detention of a person may cause irreparable loss.
  • Anticipatory Bail: Anticipatory bail is a type of bail which is granted when there is only an apprehension of arrest and not an actual arrest. Anticipatory bail is also known as pre-arrest bail because it is an advance bail which can be obtained under Section 438 of CrPC. An application can be moved in the High Court of concerned State under Section 438 of CrPC and if the anticipatory bail has been granted then an individual can’t be arrested by the police. The presence of the person who has the apprehension of arrest is not required and only their legal representative’s arguments would be enough.

TRANSIT BAIL

In CrPC, the term Transit bail is nowhere defined or even mentioned. A Transit bail is granted by the court where the jurisdiction doesn’t lie to provide a time period to the accused person so that they can exercise their powers in the concerned court. If the court doesn’t have the jurisdiction, then the applicant can opt for transit bail from such a court and can ask for a protection time period to go and exercise the rights in the concerned court. Therefore, in such cases the High Court can use its inherent power and grant transit bail which is for a particular time period only.

Case: The Toolkit Case

GROUNDS FOR BAIL

  1. Appearing in the court as laid out in the bail.
  2. The applicant has to make himself available for interrogation by a police officer as directed by the court or as required by the police officer.
  3. Giving an undertaking to not repeat any similar offence.
  4. The applicant shouldn’t leave the country without previous permission of the court.

CONDITIONS OF BAIL

  1. All the allegations levied on the accused is false and frivolous.
  2. The nature of crime is not such that the accused can be a threat to the society
  3. There is no direct evidence indicating that the accused has committed the crime.

BAIL APPLICATION

A Bail application can be moved in the court under section 437 of Criminal Procedural Code.

If the accused can afford an advocate, then the advocate would make an application and represent his client before the judge.

If the accused cannot afford an advocate he may make a written application to the judge. For this a form is to filled which is provided by the prison staff, the accused needs to fill the form in order to convince the judge to grant bail.

BAIL UNDER CRPC

Section 167(2) Releasing an arrested person after 60/90 days of custody.

Section 389 Bail pending appeal

Section 436 Bail in bailable offence

Section 437 Bail is non-bailable offence

Section 438 Anticipatory Bail

Section 439 Special powers of High Court in granting Bail

Section 440 Amount of bond

Section 441 Bond of accused and sureties

Section 442 Release of person from custody on Bail

Section 443 Ordering for further security when the first taken is insufficient

Section 444 Discharge of Sureties

Section 445 Deposit of money in lieu of executing surety bond

Section 446 Procedure when a bond has been forfeited

Section 446A Cancellation of bond and bail bond

Section 447 Furnishing of fresh sureties

Section 448 Bond required from minor

Section 449 Appeal from orders under section 446 CrPC

Section 450 Direction of the High Court or Court of Session to Magistrate to levy the amount due on a bond

Section 482 Inherent powers of High Court

ARTICLE 21 AND RIGHT TO BAIL

Article 21 of the Indian Constitution is said to enshrine the most important human rights in criminal jurisprudence. That is Right to live freely and with dignity. It is clearly stated in Article 21 that no person shall be deprived of his life or personal liberty except according to procedure established by law. Therefore, when a person goes against the laws of the land, he must face consequences as per the law for the same. Such consequences might infringe the rights of an individual because such a consequence is a result of his actions alone.

RIGHTS AND DUTIES OF A POLICE OFFICER FOR BAIL

  1. Granting of bail is a legal right of an individual in bailable offences.
  2. The accused in custody of the police officer shall be released in case of bailable offence.
  3. In case of non-bailable offence only the Magistrate can grant bail to the accused.
  4. If the police officer thinks that there is no sufficient cause to keep the accused in detention, then he can release the accused person on bail.
  5. If the police officer is of the opinion that the case needs further investigation, even then he can release the accused on bail.

RIGHTS AND DUTIES OF A JUDICIAL MAGISTRATE FOR BAIL

  1. Only a Judicial Magistrate can grant Bail in case of non-bailable offence.
  2. If the Magistrate thinks that the reasons mentioned in the application by the accused is reasonable and there is need to grant bail, then bail can be granted in such a case.
  3. Only a session or high court can grant bail to an accused charged with a crime punishable with death or life imprisonment.

REJECTION OF BAIL

Bail can be rejected by the court in cases where the court doesn’t see any need to grant the bail or when the court is not satisfied with reasons mentioned by the accused.

However, when a bail is rejected the magistrate needs to record the reason for doing so. This is done so that there is clear reasoning and also so that there are necessary records to make a proper appeal for bail in higher courts.

FAMOUS CASES

  • Bail is the Rule and Jail is an Exception. This was held in Khemlo Sakharam Sawant v State of Maharashtra.
  • Prahlad Singh Bhati vs NCT Delhi and Ors. In this case the honorable Supreme Court has mentioned that other relevant grounds which play a vital role in deciding the bail application are –
    • The possibility for repetition of crime
    • The time lag between the date of occurrence and the conclusion of the trial
    • Illegal detention, and
    • Undue delay in the trial of the case.
  • Hon’ble Supreme Court, in the year 2017 in Aasu vs. State of Rajasthan issued a direction that Bail applications shall be disposed of normally within one week.
  • It was recently held by Hon’ble Supreme court on 24.01.2020 While deciding the Criminal Appeal No. 153 of 2020 Title as PRABHAKAR TEWARI VS. STATE OF UP AND ORS. In the para no. 7 “… the offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factor by themselves cannot be the basis for refusal of prayer of bail.”