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Bail | Types | Grounds for Bail | Conditions for Bail | Powers of the Courts | Cancellation of Bail |

 > Anticipatory Bail & Regular Bail  > Bail | Types | Grounds for Bail | Conditions for Bail | Powers of the Courts | Cancellation of Bail |

Bail | Types | Grounds for Bail | Conditions for Bail | Powers of the Courts | Cancellation of Bail |

Introduction
Bail, is the procurement of release from prison of a person awaiting trial or an appeal, by depositing a security to ensure his submission at the required time to the legal authority. The monetary value of the security, which is set by the court having jurisdiction over the crime committed by the accused, is known as bail bond. This security may be in terms of cash, power of attorney papers, or the bond of private persons or of a professional bonding company. If the person released on bail fails to surrender himself at the appointed time then the outcome is the forfeiture of this security.

The term bail is not as such defined under the Criminal Procedure Code (Cr. P.C.), 1973 even though the terms, bailable offence and non-bailable offence is stipulated in Section 2(a) of the Act. If an offence is shown as bailable in the First Schedule or which is made bailable by any other legislations in force for the time being then it is known as bailable offences. All other offences other than bailable offences are known non-bailable offence. Section 436 of the Act deals with bail in cases of bailable offences and Section 437 stipulates bail in cases of non bailable offences.
Provisions relating to bail in criminal cases are mentioned from Sections 436 to 450 of the Criminal Procedure Code, 1973. The Court, either Sessions or High Court, has the discretion to determine the amount of security that is to be paid by the accused to secure his release as it is not as such given in this particular Act. The three major types of bails are given below:

Regular Bail
In the case of a person committing grave offences the police can arrest the accused without prior warrant or can commence the investigation without taking the permission of the Court, which is said as cognizable non-bailable offences. Thereafter, the police can take necessary action by taking the person under their custody and after the expiry of the custody tenure such person will be sent to jail. The accused has the right to be released from such custody as per Sections 437 and 439 of the Criminal Procedure Code, 1973 at the time when the person has been arrested. A regular bail is given to ensure that there is no absence of the accused in the trial for which he is released from custody. The decision between Right to Liberty as per Article 21 of the Indian Constitution, in relation with whether an accused can be granted bail in respect of a non-bailable offence is the essence behind granting of bail under Section 437 of Criminal Procedure Code, 1973. Under this section, any court other than the High Court or the Court of Sessions may grant the person bail, who is arrested without a warrant and is produced before a court of law. There are some circumstances when such bail is not granted because the Court, finds sufficient grounds to believe that the person is guilty of an offence punishable with death or life imprisonment.

Now, the bail could even be refused due to the cognizable nature of the offence and for the act in which the person has been previously convicted of an offence with a punishment of death or imprisonment for a period of seven years or more or was convicted for more than two occasions for an offence with a punishment of imprisonment for three years or more. The Public Prosecutor is given an opportunity of being heard and to oppose the bail, before the same is granted. In this case too bail can be granted upon fulfilling these conditions as given:

  1. Attendance is marked as laid down in the bail bond;
  2. Undertaking that no such similar offence will be committed and
  3. Undertaking that no direct or indirect inducement, threat or promise is applied to any person who knows the facts of the case.
    Furthermore, in case the accused is a woman or a child or if there are no strong evidences in the case and extended enquiry is required by the Court or even in cases where FIR has not been lodged promptly and the accused is seriously indisposed or infirm, the Court may grant bail.
    In case of Kalyan Chandra Sarkar v. Rajesh Ranjan [(Crl Appeal) 1129 of 2004] the Apex court had observed that the detention of the accused in non-bailable offences could not be questioned as being a violative of Article 21 of the Constitution.

Interim Bail
Interim bail is granted for a short period of time as a temporary means which is either during the time of pendency of an application or at the time when the decision regarding the application of anticipatory or regular bail is sub judice. It is always taken as a conditional bail which can be extended, but if such a bail expires before the accused is granted an anticipatory bail or regular bail and there is a failure to pay the amount necessary for continuing the bail, then the accused can be taken to the custody.
In Lal Kamlendra Pratap Singh v. State of U.P. and Ors. [Crl. Appeal No. 538 of 2009], the concept of interim bail was introduced by the Honourable Supreme Court stating that interim bail shall be allowed pending the disposal of bail application since the arrest and illegal detention of a person could lead to irreparable losses to the accused.

Under Sections 437 or 439 of the Criminal Procedure Code, 1973 no express provision for interim bail is specified while there are certain hints given in Section 437(2) of the Act. In order to exercise such a power as given in Section 437(2), the Magistrate may order notice to the prosecution, in that case the accused under arrest cannot avoid the detention in jail. Therefore, the interim bail regime becomes prominent even in matters after arrest leaving alone the interim bail provision given in Section 438 of Criminal Procedure Code (Cr. P.C.), 1973.

The reason why liberty is held as quintessential element of a civilized society is because life bereft of liberty is one without honour and dignity which is not worth living. In Sukhwant Singh v. State, [(2009) 7 SCC 559] the Supreme Court filled the grey spaces in Sections 437 and 439 by upholding that the court hearing a plea for regular bail has inherent power to order interim bail and pending final disposal of the bail application. The Hon’ble Supreme Court in the case of Rukmani Mahato v. the State of Jharkhand [S.L.P Criminal No. 2411 of 2016] ,while expressing the extreme displeasure over granting regular bail when the interim bail is granted by higher court and the matter is still pending, held that the regular bail will continue to be in force even though the Apex Court dismisses the anticipatory bail application after full considerations regarding the matter, thus rendering the ultimate rejection of the pre arrest bail by Apex Court as useless.

When the High Court or Court of Session hears interim bail application then the Public Prosecutor is given a reasonable opportunity of being heard for which the court provides the show cause notice attested with a copy of the order, to the Public Prosecutor and the Superintendent of Police. The Court grants Interim bail when it is convinced that the object of the accusation against the accused is to harm the reputation and humiliate the person. This bail is an effective check mechanism against unscrupulous exercise of the arrest power by the police. A judicious understanding of the facts is important at the point of determining the prayer for grant of interim bail application only because at that stage the merits and gravity of the cause of action of the case may not be appreciated by the courts in toto. This bail is consistent with the fundamental right to life and liberty enshrined in Article 21 of the Constitution.

Anticipatory Bail
Anticipatory bail is specified in Section 438 of the Criminal Procedure Code, 1973 as a type of bail which is granted to the person who is anticipating arrest for a non-bailable offence by the police. A person who has been granted this bail cannot be arrested by the police. The very purpose behind inserting this provision was to ensure that no innocent person is confined in any way unless he is held guilty by the court of law. Thus, upholding the very ideal of the judicial system that is that the person is presumed innocent until found guilty by the court.

One may apply to the High Court or the Sessions Court for a direction under this provision that, in occasion of such arrest he/she shall be released on bail when that person believes that there is a chance of him being arrested on accusation of having committed a non-bailable offence. The may allow anticipatory bail after taking into consideration the following factors:
(a) The severity of the accusation against the person.
(b) The antecedents of the person applying along keeping in mind the fact that whether the person has undergone imprisonment on conviction by a Court in respect of any cognizable offence earlier or not
(c) The possibility that the person applying might to escape from the eyes of justice.
(d) Where such an accusation is made with an intention to injure or defame the applicant by having him so arrested
It is obligatory for the applicant seeking anticipatory bail to be present at the time of final hearing and passing of final order by the Court. For meeting the ends of justice the court considers the presence of the applicant if such an application is made to it by the Public Prosecutor.

The Hon’ble Apex Court in State of M.P v. Pradeep Sharma [(Crl. Appeal No. 2049 of 2013] held that when a person is hiding in order to avoid execution of warrant executed against him and is declared as a proclaimed offender reading with Section 82 of the said Code, then that person is not entitled to the relief of anticipatory bail.
In accordance with the facts of particular cases the High Court or the Court of the Sessions may include such conditions for the grant:
• Firstly, that the person should be available for interrogation and cooperate with the investigation by the police officer whenever called for.
• Secondly, the person shall not, whether directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from bringing out such facts to the notice of the Court or to police officer.
• Thirdly, that the person without the prior permission of the court shall not leave the country
• Lastly, upon any other conditions as may be imposed under section 437(3) of the Act, as if the bail were granted under this provision.
In Gurbaksh Singh Sibbia v. State of Punjab [1980 AIR 1632], the Hon’ble Supreme Court clarified the distinction between an ordinary order of bail and an order of anticipatory bail indicating that the former is granted after arrest which means it is release from the custody of the police, and the latter is granted in anticipation of arrest so it will be effective from the very moment of the arrest

Transit Bail
When a person apprehends arrest in a different jurisdiction apart from the jurisdiction of the suit that is filed against him, then such a person can be granted bail by applying for a transit anticipatory bail. The transit anticipatory bail is a concept that comes within the ambit of anticipatory bail.
The transit bail was introduced as a remedy against transit remand order which is permission granted by the Judicial Magistrate of a state to the police to arrest the person in a different state. This concept of transit anticipatory bail is not codified under the Criminal Procedure Code, 1973 or any other legislation; in fact it is an example of a precedent or a judge-made law. In order to get a transit anticipatory bail the person who is apprehending such an arrest has to approach the nearest High Court and apply for the same with an application so as to travel to the other state where the suit is filed, without being arrested by the police. The transit bail is only granted for a short period of time for a person who is likely to be arrested for an accusation of a non-bailable offence in a different jurisdiction from where the case is filed. In such situations, the High Court of that state is obligated to make sure that the person accused shall fulfil the conditions made by the court for granting the bail.

In the case of HoneyPreet Insan v. State [Bail Appln. 1983/2017] the Delhi High Court held that when in cases where the person is a bona fide resident of the place and falls within the ambit of territorial jurisdiction of the court where the accused is being tried, the application for transit anticipatory bail shall be rejected without even referring to the merits of the case. The court came upon the conclusion that Section 438 does not envisage the grant of transit anticipatory bail in any Sessions Court or High Court in the country where the accused may apprehend arrest. Such power vests only in the Court of Sessions or the High Court having jurisdiction over the locale of the commission of the offence of which the person is accused.

The transit bail is a concept that is yet to have full-fledged usage in order to provide justice to the citizens of this country. It is an aid to the accused to pray for anticipatory bail before the appropriate legal forum and as per the observation by the Honourable Supreme Court there is still delay to frame principles for the better use of this concept.
Apart from the above mentioned bails there are certain other variants of bail applications such as Bail on Arrest which is filed after the accused is arrested as per Section 437 of Criminal Procedure Code, 1973. After the conviction by the court the arrested person can apply for bail by way of appeal in the higher courts against the same which is known as Bail for the Convict. A Default Bail can be filed when the charge sheet is not yet filed in the concerned court or in case where the investigation is incomplete within the prescribed time limit.

Powers of the High Court or Court of Session of Granting Bail
Under Section 439 of Criminal Procedure Code, 1973 the High Court’s and the Sessions Court’s power to release the accused on bail in custody is given and that clearly the Sections 436, 437 and 439 are repository of powers of the court to release the accused post-arrest. According to Section 439(1) of the Code of Criminal Procedure, 1973 a High Court or Court of Sessions may give directions for the following:
(a) That if the offence is one as specified in Section 437(3) then, any person who is accused of an offence and in custody who wishes to be released on bail, then the court can impose any such condition which it considers necessary for the purposes mentioned in that sub-section
(b) Also, that any condition as imposed by a Magistrate can be set aside or altered while releasing any accused on bail but, the High Court or Sessions Court shall, prior to granting of bail to the person who is to be tried exclusively by the Court of Sessions or which is punishable with imprisonment for life but not necessarily triable, shall give notice of the application for bail to the Public Prosecutor albeit there are reasons that is recorded in writing claiming that it is not practicable to give such bail.
(c) Under Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Sessions can commit the person who is released on bail under Chapter XXXIII, to be arrested.
(d) Under Section 439(1) of the Code, the High Court has the exclusive power to release the accused in cases pending anywhere in the State on bail or decrease the amount of bail, but it cannot order the arrest or commitment to custody of any person who has been released on bail by the lower Court but can order to arrest the person who had been released on bail under Section 439(2) of the Code.

Under Section 389 (3) of the Criminal Procedure Code (Cr. P.C.) 1973, the trial court itself can grant a bail to the accused who is convicted by enabling him to apply for an appeal. Section 389(3) can only be applied after fulfilling these conditions:

  1. It must be a convicting Court.
  2. The accused must be convicted by the Court.
  3. The accused convicted must be sentenced to imprisonment for a period not exceeding three years.
  4. The convict expresses his intention to present appeal before the Appellate Court.
  5. The convict must be on bail on the judgment day.
    The Hon’ble Supreme Court has recently held that there is no bar on the High Court or Sessions Court to accept applications for bail, unless the accused is in custody. Thus, putting an end to archaic practises of first filing a regular bail application before a Magistrate having jurisdiction, and if it gets rejected then approaching the Sessions Court or High Court for bail.

Cancellation of Bail
The Code of Criminal Procedure, 1973 has clear provisions for cancelling the bail of an accused and to require him back to the custody. Under Section 437(5) of the Act, the court may direct any such accused who is released on bail as per Sec 437(1) and (2) if it considers it necessary so to try to, and commit him back to custody. This provision gives the Magistrate or any court that has released the accused on bail the power to direct arrest of such person and commit him to custody after the discharge on bail, if the circumstances justify in doing so.

Under Section 439(2) of the Code of Criminal Procedure the facility of cancellation of bail is resorted broadly within the following situations:
(i) When there is a violation of any substantive or procedural law or on order granting bail being protected, or passed without due application of mind, after the evaluation of merits of case.
(ii) Upon misuse of liberty post the grant of bail or other additional circumstances.

In the previous case bail is often cancelled only by superior courts whereas, in the latter case bail is often cancelled by all the courts which can grant bail. At certain times there is confusion in the judicial decisions on the matter of cancellation of bail on merits and on the matter of subsequent conduct of accused already on bail or on other supervening circumstances. In order to clear these confusions there is a requirement to completely understand the principles of cancellation of bail laid down in the Code for the interest of justice.

Conditions for Granting Bail
There are certain conditions that one must confine to for granting bail which includes not only the character of the accusations but also the severity of the punishment, if such an accusation attracts a conviction. The court must consider reasonable apprehensions, of the witnesses being tampered, the apprehensions of threat on the complainant etc. There must be a clear satisfaction to the court that the guilt of the accused is established because it isn’t always accepted to possess the whole evidence to determine the guilt beyond reasonable doubt. So as to see the genuineness of the prosecution, frivolity aspect must be considered and if there is any doubt on the genuineness to the court, then the accused usually gets bail.
Apart from these, there are precedents that suggest varied dimensions for grant and non-grant of bail which is case specific. Usually women accused are granted bail but there could also be instances when a lady is detained for being an accused of committing a non-bailable offence. This type of problem has been given a solution by various courts that releasing a lady accused of have committed a non-bailable offence on special grounds isn’t discriminatory.

Furthermore, the courts have opined that where the prosecution is unable to influence the court and that there are reasonable grounds to believe that the accused person is guilty of commission of a non-Bailable offence, then the accused person should be released on Bail as also reiterated in Gurcharan Singh v. State (Delhi Administration), [(1978)1 SCC 118]. Having said so, it is now acknowledged, that courts have abstained from enlarging an accused on bail in cases punishable with death sentence. In the case of Sidharth Vashisth v. State of Delhi [2004 Cri LJ 684 (Del]) the Delhi High Court put down certain guidelines to be kept in mind while granting bail in which the court reiterated that it is the discretion of the court to grant bail in non bailable offences, the court handling grant of bail is to only satisfy if there is a clear case against the accused as also observed in Chamna Lal v. State of UP [(2004) 7 SCC 525].

The Courts of the country have always stressed on the very fact that the said discretion is to be exercised in a judicious manner and not as a matter in fact. The Hon’ble Supreme Court in Sumit Mehta vs. State of NCT of Delhi[ (2013) 15 SCC 570] held that the terms ‘any condition’ employed within the Section shouldn’t be considered as conferring absolute power on a Court to impose any condition that it chooses to while granting bail. Rather this ‘any condition’ has got to be interpreted as an inexpensive condition which isn’t vague and is acceptable in facts, permissible in circumstance and which is effective within the pragmatic sense so that it doesn’t defeat the order of grant of bail.

In the matter of Prahlad Singh Bhati v. N.C.T. Delhi and Ors [Appeal (crl.) 324 of 2001], the Hon’ble Supreme Court has held that if a person is not granted bail because he is charged with an offence punishable with death or imprisonment of life, but he /she is under the age of 16 years or a woman, ill or infirm, then subject to such conditions that could be imposed by the concerned court be granted bail. Other relevant grounds which are imperative to be looked into while deciding the bail application are the likelihood of duplication of the crimes, the delay in time between the date of occurrence and therefore the conclusion of the trial, non-legal detention, health of the accused and unreasonable delay within the trial of the case.

How To Obtain Bail?
When an individual gets arrested and is convicted for an alleged crime then he can apply for bail. In case of bailable offences the accused has got to submit Form-45 as given in Second Schedule to the court, which has jurisdiction to hear the case. Whereas, in case of non bailable offences also a Form-45 has to be submitted in the court but the discretion to grant bail lies with the court concerned. Along with the said form a bail application has to be filed by the lawyer of the accused before the court where the case proceedings are to be heard. Without such an application the court won’t grant bail.
If the conviction is already given then the accused can apply for appeal in the appellate court. The judge after hearing all the explanations and upon evaluation of the grounds for bail determines whether the bail is to be granted or not. The court considers various factors like the gravity of the crime, the history of convictions of the accused if any, financial condition of the accused etc. at the time of granting the bail in addition to which certain conditions is also applied. An amount as bail amount has got to be deposited in the court by the accused which is decided as per the discretion of the court. For lower gravity crimes a typical amount is fixed by convention which is deposited for grant of bail.

Conclusion
Bail is a privilege cum right to the accused but there lies a line between the right to liberty enshrined in Article 21 of Indian constitution and the principles of law in reference to matters of commission of non-bailable offences. In the celebrated case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan [1987 AIR 1613] the Hon’ble Supreme Court had opined that liberty is to be protected through a process of law, which is to be administered with the consideration that the interests of the accused, the interests of the victim’s close relatives who feel helpless along with the collective interest of the community is to be looked into so that persons affected do not lose faith in the institution of justice.
Article 21 is of great importance because it enshrines the elemental right to individual liberty, but at the same time a balance has to be struck between the rights of individual to liberty and interest of society at large. No right is absolute. There are reasonable restrictions imposed on them in order to be flexible so that the interests of the changing times are met. The Court while adjudicating bail applications must take such factors in consideration and the persons must be lawful to the society for the privilege of liberty in return.
Authored By: Adv. Anant Sharma & Jyotsna Jose

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