Introduction:
The concept of bail, which is a basic part of the Indian criminal jurisprudence and it is well-recognized principle among all the judicial systems of the world. Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner.
According to Black’s Law Dictionary, Bail is defined as “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.” A precise definition of bail was provided by the Supreme Court in Sunil Fulchand Shah v. Union of India[1] in which it was held that “Bail is a security obtained from a person arrested regarding an offence to secure his presence during the course of trial.”
In the case of Superintendent and Remembrancer of Legal Affairs vs. Amiya Kumar Roy Chowdary[2], the Court held that the law of bails, “has to be dovetail two conflicting demands, namely, on one hand, the requirements of society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz., the presumption of innocence of an accused till he is found guilty.”
The concept and usage of bail can be dated back to 339 BC. The system of bail was introduced with the practice of a concept known as circuit courts in Britain during medieval times. In India, the provision of bail is governed by the Code of Criminal Procedure, 1973, specifically, Sections 436 to 450. It specifies the offences for which bail can and cannot be granted which depends on the intensity and severity of the offence. It is the discretion of the court to decide the bail amount based on the offence and the economic status of the person. There are mainly three types of bail in India; Regular, Interim and Anticipatory Bail.
A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC. An interim of bail is granted for a short period and it is granted before the hearing for the grant of regular bail or anticipatory bail. Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non-bailable offence.
Bail in Bailable Offences
According to section 436 of CrPC, If the offence alleged is bailable, then, the Accused is entitled for Bail as a matter of right, maybe before Police station itself, or if forwarded to Magistrates Court, before Magistrates court. In bailable offences, bail is a right and not a favour. In such offences, there is no question of any discretion in granting bail. Bail can be claimed as of right and there is a statutory duty imposed upon the Police Officer as well as the Court to release a person on bail if he is prepared to give bail. Such a person can also be released on his bond in a fit case. It is only where the accused is unable to furnish bail then he should be kept in detention.
The Hon’ble Supreme Court in the case of Rasiklal V/s Kishore Khanchand Wadhwani[3] held that “As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him”. However, where the offences alleged are both Bailable and Non-Bailable, the offence would be tried as Non-Bailable offence, and benefit of securing Bail on the premise of Bailable offence would not be available to the accused.
There had been instances where under trial prisoners were detained in jail for periods beyond the maximum period of imprisonment provided for the alleged offence. A new section 436A[4] is inserted in the Code to provide that where an under trial prisoner other than the offence for which death has been prescribed as one of the punishments, has been under detention fora period extending to one half of the maximum period of imprisonment provided for the alleged offence, he should be released on his bond, with or without sureties. It is also provided that in no case the under trial be detained beyond the maximum period of imprisonment for which he can be convicted for the alleged offence.
Bail in Non-Bailable Offences
The provisions of section 437 empower two authorities to consider the question of bail, namely a court and an officer-in-charge of the police station who has arrested or detained without warrant a person accused or suspected of the commission of a non-bailable offence. Although this section deals with the power or discretion of a court as well as a police officer in charge of the police station to grant bail in non-bailable offences it has also laid down certain restrictions on the power of a police officer to grant bail and certain rights of an accused person to obtain bail when he is being tried by a Magistrate. Section 437, Criminal Procedure Code, deals with the powers of the trial court and of the Magistrate to whom the offender is produced by the police or the accused surrenders or appears, to grant or refuse bail to a person accused of, or suspected of the commission of any non-bailable offence.
The power to release on bail a person accused of a non-bailable offence is conferred upon only one class of police officers, namely an officer-in-charge of the Police Station under section 437 sub Section (I). Since the power to grant bail is permissive and not obligatory, it has to be exercised with great caution because of the risk and stakes involved. Before exercising his power, a station officer ought to satisfy himself that the release on bail would not prejudice the prosecution in bringing home the guilt of the accused.
In case the officer in charge admits an accused to bail, it is mandatory for him to record the reasons or special reasons in the case diary and preserve the bail bonds until they are discharged either by the appearance of the accused in court or by the order of a competent court. For the purpose of bail in non-bailable offence, the Legislature has classified them under two heads: (1) those which are punishable with death or imprisonment for life; (2) those which are not so punishable.
In case of an offence punishable with death or imprisonment for life a station officer cannot enlarge a person on bail, if there appear reasonable grounds for believing that he has been guilty of such offence. The age or sex or sickness or infirmity of the accused cannot be considered by a police officer for the purpose of granting bail. These matters may be taken in view by a court only. An officer-in-charge of the police station may grant bail only when there are no reasonable grounds for believing that the accused has committed a nonbailable offence or when the non-bailable offence complained of is not punishable with death or life imprisonment.[5]
Kinds of Bail
Anticipatory Bail
The Law Commission of India, in its 41st Report dated September 24, 1969, pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant “anticipatory bail”. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. The very basic purpose of insertion of this provision was that no person should be confined in any way until and unless held guilty.
Where any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail and the court shall provide him anticipatory bail after taking into consideration the following factors, namely
- the nature and gravity of the accusation.
- the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence.
- the possibility of the applicant to flee from justice.
- where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
Where the High court or court of session grants interim bail to the applicant then the court forthwith a show cause notice attested with a copy of such order, served to the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
Accused who has been declared as an absconder/proclaimed offender in terms of Section 82 of the Criminal Procedure Code and not cooperated with the investigation should not be given an anticipatory bail. Hon’ble APEX Court in State of M.P vs. Pradeep Sharma[6] held that “when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of the warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail”
Hon’ble Supreme Court while dealing the case of Siddharam Satlingappa Mhetre[7] held certain conditions imposed by the High Court to be not required & contrary to provisions of anticipatory bail. An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail to be arrested and commit him to custody on an application moved by the complainant or the prosecution.
In Gurbaksh Singh Sibbia v. State of Punjab[8] the Hon’ble Supreme Court held that “The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest”
Default Bail
SECTION 167(2) of the Criminal Procedure Code, 1973 empowers judicial magistrates to authorize custody of an accused person in cases wherein investigation cannot be completed in twenty-four hours. It provides for the maximum period of custody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of the accusation against him.
In Natbar Parinda [9] the Supreme Court noted that the accused has a right to be released on bail under this provision “even in serious and ghastly types of crimes”. The court observed: Such a law may be ‘paradise for the criminals’, but surely it would not be so, as sometimes it is supposed to be, because of the Courts, it would be so under the command of the legislature.
The proviso to section 167(2) does not lay down any time limit for completion of investigation. In substance it deals with the “detention of the accused person in custody” during investigation. The mandate of the proviso is that the accused is not to be detained in custody beyond the period of 90/60 days as may be applicable to the offence for which the accused is being detained. If the investigation is not completed within that period, on the expiry of such period, the accused is to be “released on bail if he is prepared to and does furnish bail”.
The role of the accused under the proviso is that he should show willingness to furnish bail and to furnish bail when magistrate passes an order for release on bail. Under the legislative scheme of section 167(2), the magistrate has no authority to detain the accused in custody beyond the statutory period of 90/60 days. Once the stipulated period expires and the investigation is not completed, the magistrate cannot further authorize detention of accused in custody. In such a situation the magistrate has to forthwith pass an order releasing the accused on bail. After passing such an order the magistrate has to call upon the accused to furnish bail.
Once such an order is passed, the accused can be “detained in custody so long as he does not furnish bail”. Explanation I to section 167(2) of the Code makes this position clear. Needless to say, that if charge sheet is filed on completion of investigation within the stipulated period, the accused would be detained in custody under the authority of law namely section 209 or 309 of the Code as the case may be. The question of detention in custody under section 167(2) would not arise in cases wherein accused is released on bail under chapter XXXIII of the Code.
Despite this clear mandate of section 167(2), questions and issues have arisen leading to a plethora of case law, at times conflicting and confusing. An attempt is made in this note to analyse the case law in order to arrive at a correct understanding of the provisions.[10]
Conclusion
One of the most fundamental principles of criminal law is that a person is “innocent until he is proven guilty.” Any person under trial can avail different types of bail. The Supreme Court of India has held in many judgments that, until the final verdict of the court, every person is presumed to be innocent and has the right to bail until proven guilty.[11] There is also a strong need felt for a complete review of the bail system keeping in mind the socio-economic condition of the majority of our population. While granting bail the court must also look at the socio-economic plight of the accused and must also have a compassionate attitude towards them. A proper scrutiny may be done to determine whether the accused has his roots in the community which would deter him from fleeing from the court.
[1] MANU/SC/0109/2000
[2] ILR (1974) 1 CALCUTTA 304
[3] AIR i2009 i1341
[4] cr.p.c i2005 Amendment
[5] (n.d.). Home/District Court in India | Official Website of District Court of India. https://districts.ecourts.gov.in/sites/default/files/6-Bail%20Anticipatory%20Bails%20-%20Sri%20M%20Sreenu.pdf
[6] criminal Appeal No.2049 of 2013 dt.06-12-2013
[7] (2011) 1 SCC 694
[8] AIR 1980 SC 1632
[9] AIR 1975 SC
[10] Vaghela, R. (2003). DEFAULT BAIL: A STUDY OF CASE LAW. Journal of the Indian Law Institute, 45(1), 80-96. Retrieved November 21, 2020, from http://www.jstor.org/stable/43952409
[11] Aakash Kumar and Animesh Upadhyay, Default Bail Controversy Amidst COVID-19, JURIST – Student Commentary, May 27, 2020, https://www.jurist.org/commentary/2020/05/kumar-upadhyay-default-bail-controversy/.
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