- Article 21 of the Constitution of India guarantees the protection of life and personal liberty to all persons.
- Which in turn gives us the right to ask for bail when arrested by any law enforcement authority.
Meaning of Bail
- ‘Bail’ connotes the process of procuring the release of an accused charged with certain offences by ensuring his future attendance in the court for trial and compelling him to remain within the jurisdiction of the court.
Legal position of Bail
- The term ‘Bail’ has not been defined under the Criminal Procedure Code, 1973.
- Only the term ‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a) of Cr. PC.
- The provisions relating to bail and bail bonds are mentioned under Section 436-450 of the Criminal Procedure Code.
Categories of Bail
- Offences are classified into bailable and non-bailable offences.
Bailable offences :
- According to Section 2(a) of CrPC bailable offence means an offence that is classified as bailable in the First Schedule of the Code, or which is classified as bailable under any other law.
- An accused can claim bail as a matter of right if he is accused of committing a bailable offence.
- The police officer or any other authority has no right to reject the bail if the accused is ready to furnish bail.
- Under Section 436 of CrPC 1973, a person accused of a bailable offence at any time while under arrest without a warrant and at any stage of the proceedings has the right to be released on bail.
- A non-bailable offence is defined as any offence which is not a bailable offence.
- A person accused of a non-bailable offence cannot claim bail as a right.
- A person accused of non-bailable offences can be granted bail provided the accused does not qualify the following conditions:
- There are reasonable grounds to believe that he has committed an offence punishable with death penalty or life imprisonment.
- That the accused has committed a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment of seven years or more or if the accused been convicted on two or more instances of a cognizable and non-bailable offence.
- There are exceptional cases in which law gives special consideration in favour of cases where the accused is a minor, a woman, a sick person etc. [Section 437(1) CrPC].
Different types of Bail
- The court orders the release of a person who is under arrest, from police custody after paying the amount as bail money.
- An accused can apply for regular bail under Section 437 and 439 of CrPC.
- This is a direct order by the court to provide temporary and short term bail to the accused until his regular or anticipatory bail application is pending before the court. The Supreme Court noticed the misuse of interim bail by the accused in Rukmani Mahato vs. the State of Jharkhand.
- This is a direct order of Sessions or High Court to provide pre-arrest bail to an accused of a crime.
- When the person has an apprehension of being arrested, the person can apply for anticipatory bail.
- Sometimes, an application for anticipatory bail may go against the person, as it might alert an investigation agency regarding the involvement of that person in a crime.
Important factors while granting anticipatory bail
Based on Section 438(1) of CrPC, the Supreme Court has enumerated a detailed and exhaustive list of considerations while deciding anticipatory bail.
- Gravity of crime and role of accused must be understood before the arrest.
- Previous record of accused, any imprisonment on conviction in respect of non bailable offence, should be checked.
Possibility that applicant will flee from justice.
- Chances of repetition of similar or other offences.
- Intention behind accusation is whether to injure or humiliate the applicant by arresting him or her.
- Consider the exact role of the accused.
- Reasonable apprehension of tampering with evidence, witnesses and threatening the complainant.
Cancellation of bail
- Under Section 437(5) of CrPC, the court which has granted bail can cancel it, if found necessary under certain conditions.
- Per Section 439(2), the Sessions Court, High Court, or Supreme Court can, suo moto, cancel the bail granted to the accused and transfer the accused to custody.
- Per Section 389(2), an appellate court can also cancel the bail of the accused and order the accused to be arrested and sent to custody.