What is Bail and Who Can Get It?The types of bail and the basic procedure
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AUTHOR: Harish Nair
Introduction
Bail is a critical concept in the Indian Justice system as it maintains justice whilst reinforcing the accused constitutional rights to personal liberty. Bail is considered as a temporary release of an accused person from custody, typically on the condition that they appear in court when summoned. Even though the term “Bail” is not explicitly used, its types and legal applications are explained in the Criminal Procedure Code (CrPC). Bail is a tool used to ensure that nobody is unnecessarily detained before they are convicted.
What is Bail?
Bail is known as the provisional release of an accused individual who is pending trial. Their appearance in court is assured via surety or upon furnishing a bond. The concept of Bail aids in upholding the principle of ‘innocent until proven guilty’ as well as the constitutional guarantee of personal liberty under Article 21 of the Constitution of India. However, bail is not a right in all cases for all people.
Who can get Bail?
Whilst any individual in India who has been arrested or anticipates arrest can apply for bail. However, there are several factors affecting whether they will receive said bail. These factors include:
Nature of the offence – whether it is bailable or non-bailable;
Bailable offences: less serious offences where bail is a right as expressed in Section 436 of the CrPC. E.g. Public nuisance
Non-Bailable Offences: More serious crimes where bail is subject to judicial discretion and is not automatic as highlighted in Section 437 of the CrPC.
Stage of the case – pre-trial, during trial, or post-conviction;
Discretion of the court – especially in non-bailable offences;
Past record and likelihood of absconding;
A person is far less likely to be granted bail if they have a record of criminal activity as this would endanger the public.
Possibility of tampering with evidence or influencing witnesses
Additionally, there are certain categories of people with greater protection and receiving bail far easier than others. These include:
Children: Under the Juvenile Justice Act, 2015, children are to be protected and are usually granted bail unless the crime that they have committed is severe.
Women: Courts are often more lenient with women especially if they are pregnant or mothers.
Sick and Elderly: Courts grant bail a lot easier
Undertail: Individuals who have spent half the minimum sentence time for their crime in custody as undertail are allowed bail under Section 436A of the CrPC.
Types of Bail
In India, there are three different types of bail.
Regular Bail:This is the type of bail granted to someone who is already arrested and in custody. In addition to the aforementioned Section 436 and 437 of the CrPC, Section 439 also gives special powers to the High Court of Sessions Courts to grant bail.
Anticipatory Bail:A pre-arrest legal protection for a person who fears arrest for a non-bailable offence. This type of bail is defined in Section 438 of the CrPC.
It allows a person to apply for bail in anticipation of being arrested.
It is discretionary and comes with conditions and is therefore very difficult to attain (e.g., not leaving India, not influencing witnesses).
This type of bail is viewed as a constitutional safeguard under Article 21 as held by the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab (1980). However, courts must exercise discretion wisely.
Interim Bail:This is a type of temporary bail granted until the court decides on a regular or anticipatory bail application.
Usually time-bound and can be extended.
Often used in urgent situations.
Basic Procedure for Grant of Bail
For Bailable Offences:
The accused or their lawyer files a bail application before the police station or magistrate.
Bail is granted as a matter of rights.
The accused may be required to furnish sureties or personal bonds.
Police must release the accused once the conditions are met.
For Non-Bailable Offences:
The accused must approach a magistrate or a Sessions/High Court.
The court considers factors like:
Gravity of the offence;
Risk of absconding;
Previous criminal record;
Health, age, and gender;
Possibility of influencing witnesses.
The judge has discretion to grant or reject bail.
If granted, bail conditions may be imposed (e.g., surrendering passport, reporting to police).
For Anticipatory Bail:
The accused files a petition under Section 438 CrPC before the Sessions Court or High Court.
The application must explain the reasons for anticipating arrest.
If granted, the court may direct:
The person shall be released if arrested;
Conditions to ensure fair trial.
Conditions for Granting Bail
When granting bail, courts typically impose certain conditions which must be met. These conditions include:
The accused shall not leave the country without permission.
The accused shall not tamper with evidence.
The accused shall cooperate with the investigation.
The accused may need to deposit a sum of money or provide a surety.
Non-compliance with these conditions may lead to cancellation of bail.
Rejection and Cancellation of Bail
A bail application can be rejected or cancelled due to a number of different factors.
Rejection: A bail application can be rejected based on the seriousness of the offence, possibility of absconding, or prior criminal history.
Cancellation: Even after bail is granted, it can be cancelled under Section 439(2) of CrPC if:
The accused violates the conditions of bail;
Commits another offence while on bail;
Attempts to interfere with the investigation or trial.
Conclusion
Bail in India is instrumental in supporting the right to liberty while guaranteeing that the administration of justice is not obstructed. It is not only a legal remedy but also a constitutional guarantee of liberty unless guilt is established. Bail in India is an important instrument in maintaining the right to liberty with the assurance that the administration of justice is not affected. Though procedures can differ depending on the nature of offence and type of bail, the crux of the matter is the same – finding a balance between the freedom of an individual and the interest of society.
