Law Regarding Bail In India And Its Journey
Bail is a rule, jail is an exception is a legal doctrine that was laid down by the Supreme Court of India in a landmark judgment of State of Rajasthan vs. Balchand alias Baliya (AIR 1977 2447).
What is bail?
Bail refers to release of a person from the custody or imprisonment either before the end of time period of punishment or at the end of it.
Under which provisions of Code of Criminal Procedure,1973(Crpc), bail is explained.
The concept of bail is explained under sections 436-439 of Code of Criminal procedure, 1973.
Who has the authority to grant bail?
Bail can be granted by a First Class Magistrate.
What is the Legal Position of Bail in India?
The term bail has not been mentioned anywhere in Indian law under The Criminal Procedure Code, 1973. However, it is widely believed that this system came into existence by looking up at the English and American systems of bails. The Supreme Court had in the case of Kamlapati v. State of West Bengal defined bail as:
a technique which evolved for effecting the synthesis of two basic concepts of human value, viz., the right of an accused to enjoy his personal freedom and the publics interest on which a persons release is conditioned on the surety to produce the accused person in the Court to stand the trial.
What are the types of bail?
There are commonly three types of bail in India:
1. Regular 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.
2. Interim Bail: This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
3. 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.
What is the term Regular Bail means.
When a person commits a cognizable non-bailable offence (offences which are so grave that a police officer can arrest the accused without a warrant or start the investigation without the permission of a court), the police can take him under custody and after the custody period expires he must be sent to jail. Section 437 and 439 of the Cr.P.C gives the accused the right to be released from such custody. So, a regular bail is basically the release of an accused from custody to ensure his presence at the trial.
What is the eligibility criteria required incase of Regular Bail?
i. Regular Bail can be granted to only those persons who are taken into custody or arrested for the commission of an offense for which the punishment does not include imprisonment for life or death penalty.
ii. However, Section 437 of the Code, 1973 contains further provisions that a regular bail might not be granted to the person if he had been previously convicted of any offense that was punishable with imprisonment for more than seven years, imprisonment for life, or the death penalty.
iii. The same section also provides that bail can be granted to an accused in case of a non-bailable offense if she is a woman, child or is gravely sick.
What is the procedure to get a regular bail?
i. In order to get a regular bail, the accused can either through his Counsel or by himself write to the Judicial Magistrate of the concerned area to grant him bail.
ii. The Magistrate then issues a notice to the concerned Public Prosecutor.
iii. On hearing both the sides of the parties, the Magistrate may issue a notice of bail to the accused.
What are the conditions under which a regular bail can be refused?
There are various circumstances due to which bail may be refused to the accused. However, Under Section 42 of the Code, 1973 a bail may be refused to an accused, if he refuses to give his correct identity and address or gives one that the police believe it to be false. It is to be noted that the primary consideration when bail is denied is the nature and gravity of the offense that has been committed. If the Court is of the opinion that the accused might flee away or not turn up during the trials or there is a considerable amount of threat if the accused is let free, the bail might get rejected.
What is the term Interim Bail means.
This bail is granted as a temporary means and granted for a short period of time, either during the time of pendency of an application or when the application of anticipatory or regular bail is pending before the court. Interim bail is always conditional and can be extended, but if it expires before the accused has been granted an anticipatory bail or regular bail and he fails to pay the amount required for continuing the bail, then he loses his right of freedom and will be taken under custody.
What are the conditions under which interim bail is granted?
Interim Bail is a temporary bail which may be granted to one till the time his/her application for regular bail or anticipatory bail is pending before the court. However the chances are very less, one need to have very strong reasons to secure it.
When an interim bail can be cancelled?
An interim bail may be cancelled if the court has reason to believe that the accused is misusing the concession period granted in any manner as observed by the Honble Supreme Court in Rukmani Mahato v. the State of Jharkhand or there are chances to evade the trial process.
What is the term Anticipatory Bail means.
Under Section 438 of the Criminal Procedure Code theres a provision for an individual to take help of Anticipatory Bail. This means that a private can seek or request to urge bail in anticipation or in expectation of being named or accused of getting committed a non-bailable offence. In other words, Anticipatory bail is supposed to be a safeguard for an individual who has false accusation or charges made against him/her.
What are the conditions for granting anticipatory bail?
The conditions for granting anticipatory bail are:
• The person must be in apprehension of getting arrested. The apprehension must be reasonable.
• The person must appear in the court whenever called or required.
• The person must not at any stage disagree to introduce the facts of the case.
• The person must no leave the territory of India without the permission of the court or whatever the case maybe.
• The person must not cause threat to someone for telling the facts of the case.
What is the procedure to get an anticipatory bail?
The following steps need to be followed in order to obtain an anticipatory bail:
1. Firstly, one should contact a good criminal lawyer to apply for anticipatory bail and pre-arrest notice.
2. Secondly, Draft an anticipatory bail application along with your lawyer and sign it.
3. Remember that the application must also include an affidavit supporting it.
4. A copy of the FIR along with other relevant documents must be attached.
5. File the application in appropriate district court.
Can an anticipatory bail be cancelled?
There is no specific provision for cancellation of bail, but a bail can be cancelled by the High Court based on certain grounds to meet the ends of justice.
Moreover, a request for cancellation of the anticipatory bail can also be made by the opposite party or the police, in case you violate any of the directions imposed by the Court.
What is the difference between regular, interim and anticipatory bail?
The main difference between regular bail, interim bail and anticipatory bail is that regular is applied after the arrest, while interim is applied during the pendency of application of the anticipatory or regular bail and anticipatory is applied before arrest.
Moreover, regular bail and interim bail can be applied before Magistrate, Sessions judge and High Court, whereas anticipatory bail can be applied only before Sessions Judge and High Court.
Important Judgments on Bail:
The Hon'ble Supreme Court in the Gurbaksh Singh Sibbia and Others Vs. State of Punjab, Reported in (1980) 2 SCC 56, has laid down the following principles with regard to anticipatory bail :
a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under section 438.
c) Order under Section 438 would not affect the right of police to conduct investigation.
d) Conditions mentioned in Section 437 cannot be read into section 438.
The Honble Apex Court in Guru Charan Singh vs. Delhi Administration, 1978 AIR 179, stated that, when an accused is produced before the court, the court has a discretion to grant bail in all non- bailable cases except those punishable with death or imprisonment for life, if there appear to be reasons to believe that he has been guilty of such offences.
In Talab vs. Madhukar, 1958 AIR 376, the Supreme Court held that If a person accused of a bailable offence is admitted to bail by an order passed by the High Court or the Court of Sessions, the provisions of sub-s. (2) become applicable to his case; and under these provisions the High Court or the Court of Sessions is expressly empowered to cancel the bail granted by it and to arrest the accused and commit him to custody. This sub-section, as we have already pointed out, has been added in 1955 and now there is no doubt that legislature has conferred upon the High Court or the Court of Sessions power to cancel bail in regard to cases of persons accused of bailable offences where such persons have been admitted to bail by the High Court or the Court of Sessions under s. 498(1). The result is that with regard to a class of cases of bailable offences failing under s. 498(1), even after the accused persons are admitted to bail, express power has been conferred on the High Court or the Court of Sessions to arrest them and commit them to custody. Clearly then it cannot be said that the right of a person accused of a bailable offence to be released on bail cannot be forfeited even if his conduct subsequent to the grant of bail is found to be prejudicial to a fair trial.
The Hon'ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat, (2016) 1 SCC 152 was pleased to hold that "The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail."
Latest Judgments of Supreme Court on Bail:
1. In Sushila Aggarwal Vs. State of NCT of Delhi, 2020 5 SCC 1.
The Court held that protection granted to a person under Section 438 of Code of Criminal Procedure (CrPC) should not be invariably limited to a fixed period and should be in favour of the accused without any restriction on time. Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed. Further, the Court held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial, except in special or peculiar conditions. The Court reaffirmed the principles of Shri Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980) 2 SCC 565.
2. In Arnab Manoranjan Goswami Vs. State of Maharashtra, 2020 SCC Online SC 964.
The Supreme Court while granting bail to Arnab Goswami said that the Bombay High Court, in its verdict, abdicated its constitutional duty as a protector of liberty by refusing to grant relief to Goswami. The court while granting bail, quoted that, The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law",
3. In State Vs. Disha A Ravi, Delhi Sessions Court granted bail to Disha Ravi on 23.02.2021 stating that, Considering the scanty and sketchy evidence available on record, I do not find any palpable reasons to breach the general rule of Bail against a 22 years old young lady, with absolutely blemish free criminal antecedents and having firm roots in the society, and send her to jail.
In his 18-page judgment passed, the judge Rana pertinently held that "citizens cannot be put behind bars simply because they disagree with the government."
On the above quoted judgment, Former Attorney General Shri Mukul Rohatgi also highlighted his opinion stating that,
“It is a courageous decision by a District judge. Higher courts should learn from this. And if I may say so with great respect to the judiciary, the High Courts and Supreme Court have been lagging on this front. They have allowed this kind of non-grant of bail to kind of become a punishment.
Further, Mr. Rohatgi maintained that the judiciary has to revert to the 1978 position laid down by Justice Krishna Iyer which mandates that bail should be rule and not an exception, by quoting that- He (Judge Dharmender Rana) has kept the flag flying, Higher courts should learn from this and come back to what Justice Krishna Iyer said in 1978 That is still the law. It has not been buried though not followed for the last few years.”
Ms. Natasha Debroy
M/s Aura & Co.