The provision as regards bail and bonds has been dealt with in Chapter 32 of the Criminal Procedure Code, 1973. While there does not exist a definition of the term bail in the Code, the basic objective of bail is to secure the presence of an accused person in the Court at the time of the trial, so that if he is found guilty by the Court, he/she is available to receive the sentence.
According to the Black Law’s Dictionary, what is contemplated by bail is to, “procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.”
In general terms, bail means the temporary release of an accused person. There is a connection between a person’s right to bail and the freedom of personal liberty guaranteed under Article 21 of the Constitution. When a person is arrested, there is a deprivation of one’s personal liberty to some extent. This means, that if bail is denied to an accused, it would mean that though he is presumed to be innocent unless proven guilty beyond a reasonable doubt, there would be a serious restriction on his personal freedom. One of the most important legal principles of criminal jurisprudence is that grant of bail is the general rule and putting a person in jail or prison is an exception. Though, the Courts can put reasonable conditions while adjudicating the bail applications.
When can bail be granted?
Bail can be granted in both bailable as well as non-bailable offenses. Schedule I of the Code puts all the offenses into two categories- bailable and non-bailable. In general, offenses punishable with imprisonment with three years or more have been considered as non-bailable offenses, though there are exceptions to this rule.
According to Section 2(a), “bailable offense” means an offense 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 offense” means any other offense.
If a person accused of a bailable offense is arrested, such person has a right to be released on bail but if a person accused of a non-bailable offense is arrested, bail is not a matter of right, but only a privilege that can be granted at the discretion of the court.
Section 436 of the Code, talks about the cases in which bail can be taken and Section 437 of the Code, talks about cases when bail may be taken in case of non-bailable offenses. Thus, under Section 436 of the Code, if a person other than a person accused of a non-bailable offense is arrested without a warrant, the police officer is bound to release such a person. Whereas, under Section 437, bail can only be a matter of discretion if the offense is non-bailable. The scope of the discretion depends on various factors such as the seriousness of the crime, health, and age of the accused, the position of the accused with reference to the victim, probability of the accused committing more offenses if released on bail, etc. Under Section 437, the Court has a right to impose certain conditions at the time of granting the bail.
The new section 436-A (inserted through the 2005 amendment), envisages the release of an accused person on bail on his own surety if he has served half of the maximum term prescribed for that offense for which death is not one of the prescribed punishments.
Hussainara Khatoon versus the State of Bihar is an important case through which the enormous problem of under-trial prisoners was brought to the attention of the courts. In this case, it was discovered that a large number of women and men were behind prison bars for several years awaiting trials. Some of them were charged with petty offenses which did not warrant punishment for more than a few months, yet they had been rotting in jail for several years ranging from 3 to 10 years. This was because they were poor and were unable to pay bond money for bail and the courts had no time to try them. In this case, Justice Bhagwati observed that there was a need for providing adequate legal aid to under-trial prisoners seeking release on bail.
Anticipatory Bail (Section 438)
Anticipatory bail means bail granted in anticipation of arrest. The order granting anticipatory bail becomes operative only when the person gets arrested. Therefore, there is no question of release on bail unless a person is arrested. According to the Section, where any person has reason to believe that he may be arrested for having committed an offense of non-bailable nature, he can apply to the High Court or Sessions Court for anticipatory bail. If the application for anticipatory bail gets rejected in the Sessions Court, the applicant can approach the High Court. However, the Court may take into consideration the following factors before accepting or rejecting an application filed for Anticipatory bail:
- Nature and gravity of the accusation
- Criminal antecedents of the applicant
- Possibility of the applicant to flee from justice
- If an accusation is made with the object of injuring or humiliating the applicant by getting him arrested
A landmark case with regard to the concept of Anticipatory bail is the case of Gurbaksh Singh Sibia versus the State of Punja. In this case, the Constitution Bench comprising of five judges laid down important guidelines to be followed by the High Court and the Court of Session while exercising their discretionary powers of accepting or rejecting an application for anticipatory bail. One such important guideline was that the court’s discretion to grant anticipatory bail cannot be restricted merely because the alleged offense is the one punishable with death or imprisonment for life. Also, it was held that filing of FIR is not a condition precedent to the grant of anticipatory bail under Section 438. The Supreme Court in the instant case, also held that a “blanket order” of anticipatory bail should not be passed and that the court which grants anticipatory bail must take care to specify the offense or offenses in respect of which alone the order will be effective.
The Supreme Court in its latest judgment of 2018 in Dr. Subhash Kashinath Mahajan v. the State of Maharashtra has held that the bar under Section 18 of the SC/ST Act, against the grant of anticipatory bail, under Section 438 CrPC cannot be absolute.
Distinction between bail and Anticipatory Bail
Anticipatory bail cannot be revoked after the arrest of the accused. After arrest, the accused can seek remedy under Section 437, wherein regular bail is available to a person after the arrest or under Section 439 which specifies the special powers of the High Court and the Sessions Court regarding bail. Anticipatory bail is available to a person before the arrest of such person or in cases of reasonable apprehension of the arrest.
Bail is a legitimate process and is an option made available under the Code, to a person whose trial is still pending. The courts, however, exercise extreme caution in granting bail to accused persons.
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