Bail is the release of a person from prison who is awaiting trial or an appeal by depositing any form 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. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or a bonding company. Failure of the person who is released on bail to surrender himself at the appointed time results in forfeiture of the security. However, the Courts have greater discretion to grant or deny bail in the case of persons under criminal arrest.
What is Bail?
There is no fixed definition of Bail as it is not defined in Criminal Procedure Code, 1973, but it has to be understood as a concept. Bail means release of a person from custody of police and his delivery to the sureties who undertake to produce him in court on the appointed day.
When is a Bail granted?
According to Section 2(a) of Criminal Procedure Code, Every crime is either a Bailable or Non-Bailable offence. In Bailable offences, Bail is a matter of right however in case of non-bailable offences, bail is a matter of Judicial Discretion. According to Criminal Procedure Code, also known as CrPC, “When it appears that there are not reasonable grounds for believing that the accused has committed a non-bailable offence but further inquiry is still considered necessary, the accused may still be released on bail.” There is no hard and fast rule and no inflexible principle governing such discretion.
According to Section 347 of CrPC, the following principles are to be followed while granting/refusing bail:
- Refusal of Bail: Bail should not be refused unless the crime charged is of the highest magnitude and the punishment assigned by the law is of extreme severity.
- Reuse of Bail: Bail should be reused when the Court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment.
- Protection of Citizens: Bail should be refused if the course of Justice would be thwarted by the person who seeks the benignant jurisdiction of the court to be freed for the time being.
- Safeguarding the Judiciary: Bail should not be refused if there is likelihood of the applicant interfering with the witnesses for the prosecution or otherwise polluting the process of Justice.
- History of Convict/Person under trial: Bail should be refused if the antecedents of a person applying for bail show a bad record, particularly a record which suggests that he is likely to commit a more serious offence while on bail.
The principles of application of bail were laid in the case of Sidharth Vashishht v State of Delhi. These principles, Bail provision under CrPC, are applicable after arrest and become effective from the moment of arrest. The complainant has no right to oppose bail of the accused and only the public prosecutor may oppose the bail application. A counsel representing the complaint may act under the instructions of the public prosecutor and oppose the bail application within the limitations provided by the code.
In the case of Moti Ram vs State of MP, the accused, a poor mason was convicted. The apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate to enlarge him on bail, without making any specifications as to sureties, bonds etc. The Chief Judicial Magistrate assumed full authority on the matter and fixed Rs. 10,000 as surety and bond and further refused to allow his brother to become a surety as his property was in the adjoining village. Moti Ram went on appeal once more to the apex court and Justice Krishna Iyer condemned the act of the Chief Judicial Magistrate and said that the judges should be more inclined towards bail and not jail.
Types of Bail
Bail is a kind of security that a convict or person under trial can provide to the law in exchange of temporary release. There are different categories of bails applicable depending upon the type of charge against the person. They are:
- Interim Bail: This bail is for certain period of time and is granted to the defendant before his/ her hearing.
- Permanent Bail: This bail is permanent in nature and is granted only after hearing to the petitioner as well as the prosecution.
- Bail before Arrest: It is granted when the court feels that the accused is falsely involved in the case and an arrest would affect his honor and dignity.
- Bail on Arrest: This Bail can be granted for both bailable as well as non-bailable offenses after the accused is arrested against a charge
- Protective Bail: This bail is granted so that the accused can approach the provincial court for getting a pre-arrest bail without touching its merit.
- Directly approaching Superior Court: The Superior Courts can grant pre- arrest bail in some appropriate cases directly if the accused has been deprived or prevented of approaching lower courts.
- Bail for the Convict: Once the person under trial is convicted, bail is granted to the accused even if the appeal for the same is accepted considering the case when the court finds that there are any considerable grounds for his/her release.
The jurisprudence of bail deals with the procedural aspects of criminal law in a welfare state. The courts play an important role in balancing two contradictory but important tasks of society being shielded from the ill-effects of persons alleged with criminal offences and on the other hand, the personal liberty of a person to be safeguarded against the ignominy of serving a prison term for an offence for which he is yet to be convicted.
- Section 2(a), Criminal Procedure Code, 1973
- Section 347, Criminal Procedure Code, 1973
- Sidharth Vashishht v State of Delhi, 2004 CrLJ 684 (Del)
- Moti Ram & Ors vs State Of M.P, 1978 AIR 1594, 1979 SCR (1) 335