The Provision of Bail under the Code of Criminal Procedure, 1973
The earliest example of the concept of bail was seen in 399 B. C. E. when Greek philosopher Plato organized for a bail bond for the release of Socrates who had been arrested on the grounds of Impiety and Corrupting the minds of the population by questioning the integrity of certain Greek Gods like Zeus.
The provision of bail was not materialized in England until the 13th century A. D., wherein the sheriff of its respective jurisdictional territory had the exclusive sovereign right to either release or withhold an arrestee; additionally, the said sheriff had sole discretion to decide the bond value for releasing the aforementioned arrestee.
Chapter 15 of the Statute of Westminster, 1275, delineated between bailable and non-bailable offences; however, the sole discretion to decide the measure of bail continued to rest with the sheriff. It is worth understanding that the Statute of Westminster failed to provide a general definition of bail.
Bail refers to the transfer of guardianship from the officers of the law enforcement agency to a group of sureties in exchange for a bail bond, wherein the sureties guarantee the delivery of the accused individual at a predetermined time to the jurisdictional court of law to rebut the charges against the accused individual.
It is worth understanding that the grant of bail does not deem the arrestee either as innocent or as guilty, i.e. bail is provided to the arrestee to uphold Article 21 of the Indian Constitution that bars the state from depriving the personal liberty of the arrestee without a procedure established by law.
Although specific statutes like the Protection of Children from Sexual Offences Act, 2012, Narcotic Drugs and Psychotropic Substances Act, 1985, Dowry Prohibition Act, 1961, specifies the provisions of bail for its respective criminal offences, the Code of Criminal Procedure, 1973, provides a comprehensive outlook for bailable and non-bailable offences, and Anticipatory Bail in India in Chapter XXXIII, between Sections 436 and 450.
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Objective of Bail
Justice G. S. Singhvi and Justice H. L. Dattu in the case of Sanjay Chandra v. Central Bureau of Investigation (2012) 1 SCC 40, outlined the objective of bail, wherein the punishment of the prolonged pre-conviction imprisonment of an accused individual not only violates the individual’s Fundamental Right of Personal Liberty under Article 21 of the Indian Constitution but also violates the principle of Innocent Until Duly Found To Be Guilty By Trial where the accused individual is treated as a convict even before the court of law has had a chance to hear the accused individual. In a nutshell, the core objective of bail is neither preventive nor punitive in nature.
Justice Arijit Pasayat held in the case of Vaman Narain Ghiya v. The State of Rajasthan (2009) 2 SCC 281 that the provision of bail upholds the insurance of human rights under the United Nations Declaration of Human Rights, 1948, where bail is conditional liberty that frees an accused individual from the restraints of the state if and only if the accused individual guarantees its appearance in the court of law.
It is worth noting that the Code of Criminal Procedure, 1973 (henceforth, referred to as CrPC, 1973), does not define or expound on the meaning of bail; however, the definition of bailable and non-bailable offences is illustrated under Section 2, Clause A and Schedule 1 of the CrPC, 1973.
The definition of bail was illustrated by Justice N. Talukdar and Justice A. Banerjee in the case of Govind Prasad v. The State of West Bengal (1975) CriLJ 1249, wherein bail is the security given by the accused individual in exchange for a guarantee that it will appear in the court of law as and when required in the course of the trial.
It can be held that bailable offences include any criminal offence whose punitive punishment is capped at three years of imprisonment; consequently, non-bailable offences cover heinous crimes against society like Fabrication of False Pieces of Evidence, Counterfeiting the Indian Currency, etcetera, where the punitive punishments fall between three years and life imprisonment.
Bail under bailable offences is the absolute and indefeasible right of the arrestee whilst it is held under punitive detention; per contra, bail under non-bailable offences lies solely with the discretion of the appropriate jurisdictional court of law. Table 1 provides an overview of Chapter XXXIII of the CrPC, 1973.
|Sr. No||Section of the CrPC, 1973||Provision|
|1.||Section 436||Provision for Bail|
|2.||Section 436-A||Maximum Period of Detention for an Under-Trial Arrestee|
|3.||Section 437||Bail for Non-Bailable Offences|
|4.||Section 437-A||Bail that grants the Accused individual to appear before the next Appellate Court|
|5.||Section 438||Grant of Bail to an Individual Apprehending Bail|
|6.||Section 439||Special Authority of the High Court and the Session’s Court regarding Bail|
|7.||Section 440||Fixation of Amount of Bail-Bond|
|8.||Section 441||Relation between Bail-Bond and Sureties|
|9.||Section 441-A||Declaration by Sureties of the Accused|
|10.||Section 442||Release of the Accused from Custody|
|11.||Section 443||Issuance of Warrant to re-arrest an Accused individual if the Sureties are insufficient|
|12.||Section 444||Discharge of Sureties|
|13.||Section 445||Deposit instead of Cognisance|
|14.||Section 446||Situations where Bail-Bond is forfeited|
|15.||Section 446-A||Situations where Bail and Bail-Bond stands cancelled|
|16.||Section 447||Situations where the Surety has either died or become insolvent|
|17.||Section 448||Bail-Bond from a Minor|
|18.||Section 449||Extension of Section 446 for making Appeals|
|19.||Section 450||Direct levy of Bail-Bond owing to certain recognizance.|
Table 1: Overview of Chapter XXXIII of the CrPC, 1973.
Bail in a Bailable Offence
Section 436 of the CrPC, 1973, expounds on the provision of Bail when an arrestee is arrested for a bailable offence. Section 436, Sub-Section 1 states that it is the right of the accused individual to be released from custody by either the Officer-in-Charge of the custodial police station or the jurisdictional court of law if the said accused individual is able to provide a bail bond either personally or through a surety.
It is worth noting that neither the police station nor the court of law can refuse the application of Bail even if the accused individual fails to produce a surety, wherein it is the duty of not only the police station but also the court of law to release the accused individual after the receipt of Personal Bond.
If the accused individual is prima facie indigent, then the court of law and the arresting police station must provide Bail to the individual under the executional guarantee of a Personal Recognizance Bond without the necessity of a Surety.
If an accused individual is unable to produce a bail bond within one week of its arrest, then the aforementioned provision shall apply to the said individual where the indigent individual is provided Bail under the executional guarantee of a Personal Recognizance Bond without the need of a surety. It is worth understanding that the provision of Bail is available at any stage of custodial detention of the accused individual.
Justice S. P. Garg in the case of Deepak Khosla v. The State of NCT of Delhi & Ors. (2017) CRL. M. C. 663/ 2017, held that an accused individual must be compulsorily released by the court of law under bailable offence, if and when the individual is adroit in furnishing a bail bond.
The discretion of the court of law is revitalized when the accused individual fails to fulfil the guarantees of its bail-bond (appearing in the court of law at a predetermined time and date), wherein the individual is not only asked to pay a penalty under Section 446, Sub-Section 1 of the CrPC, 1973, after forfeiting the bail-bond of the individual but also refused Bail by the respective Court of Law in the subsequent appearance before the said court under Section 436, Sub-Section 2 of the CrPC, 1973.
Section 436-A of the CrPC, 1973, posits that if an under-trial prisoner under punitive detention against whom not only the investigation by the law enforcement agency but also the trial by the jurisdictional court of law is pending for a detention period that exceeds one-half of the maximum period of imprisonment of the offence under which the aforementioned arrestee was arrested, then the relevant court of law must provide Bail to the accused individual on a Personal Bond even if the accused individual is unable to provide any surety.
Ex: If an individual X is arrested under an offence for which the corresponding legal statute suggests a maximum period of imprisonment of ten years (if the accused individual is convicted by the court of law) and if X is held as an under-trial prisoner for six years (more than one-half of ten years), then the jurisdictional court of law must provide a Bail to X on X’s Personal Bond even if X is unable to provide a surety.
It is worth noting that certain offences are not included under the ambit of Section 436-A of the CrPC, 1973, where the maximum period of imprisonment extends to either life imprisonment (ex: Rape of a woman) or the death penalty (ex: Rape of a woman who is below twelve years of age).
Bail in a Non-Bailable Offence
Justice J. H. Bhatia in the case of Stefan Mueller v. The State of Maharashtra (2010) CRWP. 2939/ 2009, held the following categories of offences under the ambit of non-bailable offences:
- The punitive imprisonment for the offence lies between three years and seven years.
- The punishment for the offence extends beyond seven years to cover life imprisonment and the death penalty in certain cases of heinous criminal offences.
The court of law may use its discretionary powers to adjudicate non-bailable offences on a case-by-case basis to provide Bail to the accused arrestee under Section 437, Clause 1 of the CrPC, 1973.
An accused individual may be denied Bail under non-bailable offences if the court of law opines that the accused individual on Bail may obstruct the remainder of the trial either by going into hiding and repeating similar offences or by tampering with the pieces of evidence and intimating the witnesses to the aforementioned criminal offence.
Section 437 gives absolute authority to the jurisdictional court of law to deny Bail to the following categories of accused individuals:
- If the accused individual is arrested for an offence whose punishment involves life imprisonment and the death penalty (ex: Dowry Death, Murder, Gang Rape, Abduction with the intent to commit Murder, etcetera), wherein the court of law is reasonably convinced that the accused individual is prima facie guilty of the offence (Section 437, Sub-Section 1, Clause 1 of the CrPC, 1973).
- If the accused individual is charged for a cognizable offence; additionally, if the accused individual has been convicted in the past either for a criminal offence whose punishment extended to life imprisonment and death penalty or for two or more cognizable criminal offences whose punishment ranged between three years and seven years (Section 437, Sub-Section 1, Clause 2 of the CrPC, 1973).
- The individual accused of committing a non-bailable offence whose punishment includes either death penalty and life imprisonment or punitive imprisonment for more than seven years is denied Bail by the court of law if the accused individual is not heard by the Public Prosecutor.
It is worth noting that a woman, a medically sick individual, an infirm individual and a minor (below the age of sixteen years of age) may be released on Bail by the discretion of the court of law even if the said accused individual satisfies any of the aforementioned conditions (Section 437, Sub-Section 1, Clause 2 of the CrPC, 1973).
Justice Anil Kumar in the case of Meenu Dewan v. The State (2009) Bail Appl. 736/ 2008, held that the aforementioned rule is not absolute and unconditional, wherein the jurisdictional court may refuse Bail to the aforementioned individuals after weighing not only the nature and gravity of the circumstances under which the said offence has been committed but also the status of the accused individual to the victim.
Justice J. P. Semwal in the case of Chandrawati v. The State of Uttar Pradesh (1992) CriLJ 3634, held that the procedural privilege of a woman under Section 437 of the CrPC, 1973, is not absolute, where the court of law has discretionary authority to provide Bail on a case-by-case basis for the aforementioned accused individuals.
Per contra, the jurisdictional court of law can provide Bail to an accused individual under a non-bailable offence if and only if the court of law has reasonable grounds to believe that a Bail may be permitted. Section 437, Sub-Section 2 allows the court of law to provide Bail on an Execution Bond without sureties, if it reasonably not only believes that the accused individual is not prima facie guilty of committing the non-bailable offence but also believes that there exist reasonable grounds to conduct further investigation into the guilt of the accused.
The court of law may provide Bail to an individual from the custody of a police station who is either accused or suspected of committing/ abetting/ conspiring to commit an offence under Chapter VI (Offences Against the State), XVI (Offences Against the Human Body), XVII (Offences Against Property) of the Indian Penal Code, 1860, where the punishment is capped at seven years; however, the bail under Section 437, Sub-Section 3 of the CrPC, 1973, comes with three conditions that the aforementioned individual must abide by:
- The individual must appear in the court of law at the predetermined time and date.
- The individual should not commit an offence that is similar to the aforementioned offence whilst it is on Bail.
- The individual must refrain from either directly or indirectly influencing the witnesses to the case with threats or persuasion; additionally, the individual must avoid tampering with the pieces of evidence in any way.
It is worth understanding that the Code of Criminal Procedure (Amendment) Act, 2005, mandates the court of law to include the aforementioned conditions along with any other conditions it deems fit in the interest of justice in the bail-bond of the individual who is being released on a conditional Bail.
Although Section 437, Sub-Section 6 allows the jurisdictional court of law to provide Bail from custodial detention to any accused individual whose trial before the said court of law has not concluded within sixty days of commencement of the trial (from the first date fixed for collecting the pieces of evidence for the case),
it is the discretion of the court of law to balance the accused individual’s Right to Speedy Trial Without Unreasonable Delay and the benefit of the society at large by considering the circumstantial nature and manner of the offence along with the prima facie pieces of evidence that suggest the involvement of the accused individual.
It is worth mentioning that the jurisdictional court of law is mandated to record in writing its reasons for providing Bail (Section 437, Sub-Section 4) to an accused individual under Sub-Section 1 and 2; additionally, the court of law is mandated to record its reasons for withholding Bail (Sub-Section 6) of an accused individual.
In a nutshell, the Bail for non-bailable offences under Section 437 of the CrPC, 1973, rests with the discretion of the court of law, wherein the court of law must enshrine the Doctrine of Fair Trial by providing Bail only on reasonable grounds after considering the following circumstances:
- The nature, severity and the gravity of the cognizant and non-bailable offence that the individual is accused of either committing or abetting.
- The nature of the pieces of evidence may either directly or indirectly show the prima facie involvement of the accused individual.
- The possibility of the accused individual on Bail absconding from subsequent detection.
- The possibility of the accused individual repeating a similar offence whilst on Bail.
- The criminal history of the accused individual, if any, i.e. the past convictions of the individual by a court of law in a cognizable offence merits the reconsideration of the court of law while providing Bail to the accused individual. Although Section 437, Sub-Section 1 bars the jurisdictional court of law to provide Bail to previously convicted individuals, it cannot be extended to cover an individual who is involved in certain ongoing pending criminal adjudications.
- The possibility of the accused individual either negatively influencing the witnesses to the offence or tampering with the pieces of evidence whilst on Bail.
- The balance between the prejudice-free fair, thorough and influence-free investigation, and the prevention of the harassment and humiliation of personal liberty that accompanies the unjustified custodial detention of the accused individual.
Ex: The custodial detention of the accused individual, so that it can be identified by the witnesses to the offences during the course of the investigation by the law enforcement agency, is not a balanced and reasonable ground for the court of law to deny Bail to the accused individual (Section 437, Sub-Section 1, Clause 2 of the CrPC, 1973).
- The impact of Bail on society at large.
- The merits of the incumbent case, along with the possibility of either convicting or acquitting the accused individual must not be considered by the court of law whilst deciding the Bail of the accused individual.
It is worth noting that any court of law (that had previously released the accused individual on Bail) is empowered to order the arrest of the said individual under Section 437, Sub-Section 5 of the CrPC, 1973, if and only if the court of law posits that the custodial detention of the individual is necessary.
The basic criteria for the cancellation of bail by the court of law are the overwhelming abuse of the privilege of Bail to either interfere or attempt to interfere by the accused individual with the due administration of justice.
Although the appeal to cancel the Bail of the accused individual can be made by either the state or the aggrieved party apart from the suo motu cognisance by the court of law, the Bail cannot be withdrawn by the court of law without hearing the accused individual first.
The language of ‘reasonable grounds for believing’ within Section 437 of the CrPC, 1973, posits that the court of law must only be satisfied that the prosecution will be able to construct a genuine case against the accused individual with prima facie supportive pieces of evidence, i.e. the court of law does not require meritorious pieces of evidence that either convict or acquit the accused person beyond a reason of doubt when deciding on the Bail of the accused individual.
Although the CrPC, 1973, does not mention the phrase ‘Anticipatory Bail’ anywhere, Section 438 deals with the provisions relating to Anticipatory Bail. Justice P. N. Bhagwati in the case of Balchand Jain v. The State of Madhya Pradesh (1977) 2 SCR 52, held that the High Court and the Court of Sessions may exercise its discretionary power in exceptional cases to order the law enforcement agency to release an individual if it is arrested in the near future, i.e. an anticipatory bail is granted by the court of law in anticipation of an arrest of the individual.
Anticipatory Bail lies on the crossroads of two conditions: a) An Anticipatory Bail protects individuals who have been falsely accused of either committing or attempting to commit a non-bailable offence by their rivals with the malicious intent of harassing and humiliating them with custodial detention, and b) An Anticipatory Bail allows the true perpetrators of a non-bailable offence to intimidate not only the witnesses but also the victim by threats, wherein the latter is dissuaded to pursue justice against the perpetrator.
It is worth understanding that Anticipatory Bail sits on the balance of the obligation of the court of law to shield the larger society from hazards of individuals committing offences and the obligation to adhere to the fundamental provision of personal liberty against falsified accusations while attesting to the jurisprudential principle of Innocent Until Proven Guilty.
The filing of a First Information Report (FIR) and the subsequent arrest of the accused individual are two different facets of criminal jurisprudence; hence, an accused individual can apply for an Anticipatory Bail under Section 438 of the CrPC, 1973, to avoid being arrested even if the FIR has not been filed against the accused individual.
Section 438, Sub-Section 1 of the CrPC, 1973, outlines the considerations before the court of law whilst declaring an interim order for Anticipatory Bail for an accused individual:
- The nature and gravity of the accusation.
- The criminal past criminal history of the accused individual, including any conviction by a court of law for a cognizable offence.
- The possibility of the accused individual absconding from justice whilst on Anticipatory Bail.
- The possibility of malicious intent (harassment and humiliation) in accusing the said individual.
Although the accusation of committing a non-bailable offence under certain legislative statutes like the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, does not allow the accused individual to seek an Anticipatory Bail against impending arrest, if there is no prima facie case against the accused individual, then the court of law can grant an Anticipatory Bail to the accused individual.
If the Court of Sessions decides to reject the application of Anticipatory Bail for the accused individual, then the said individual is empowered to approach the High Court to re-appeal for an Anticipatory Bail; however, an accused individual cannot turn to the subordinate court of law (Court of Sessions) when the jurisdictional High Court has rejected the application of Anticipatory Bail.
It is worth understanding that the grant of Anticipatory Bail is contingent on the fulfilment of certain conditions under Section 438, Sub-Section 2 of the CrPC, 1973:
- The accused individual appears as and when its presence is requested by the investigating police station for the purpose of investigation (Clause 1).
- The accused person shall not either directly or indirectly influence the entities associated with the case by threats and intimidation to dissuade the entity from disclosing any material facts to not only the court of law but also the investigating police station (Clause 2).
- The accused individual is barred from travelling abroad without the express permission of the jurisdictional court of law (Clause 3).
An accused individual may move to the Court of Sessions or directly to the High Court to seek an Anticipatory Bail when the individual has been accused of committing/ abetting a non-bailable offence. The court of law may consider the provisions under Section 438, Sub-Section 1 of the CrPC, 1973, to either grant an interim order for Anticipatory Bail under Sub-Section 1-A or reject the Bail application entirely.
If an interim order is granted by the court of law, then a copy of the order is sent within seven days not only to the Public Prosecutor but also the Superintendent of Police under Sub-Section 1-A, so that they are given a reasonable opportunity to be heard by the court of law when the application for the Anticipatory Bail is considered by the court of law.
It is worth noting that the presence of the accused individual in the respective court of law during the final hearing of the application for the Anticipatory Bail is purely obligatory if the Public Prosecutors warrants such a presence under Sub-Section 1, Clause 1-B, wherein the court of law upholds the presence of the accused individual necessary in the greater interest of justice.
If the application for the Anticipatory Bail is rejected by the High Court (with no possibility of re-appeal with a subordinate Court of Sessions), then the accused individual can be arrested by the law enforcement agency without the requirement of a warrant, wherein the accused individual enters into the realm of ‘Bail in a Non-Bailable Offence’ realm.
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The provision of Bail is illustrated in Chapter XXXIII (Section 436 to Section 450) of the Code of Criminal Procedure, 1973, wherein a Bail is categorized into three realms: Bail in a Bailable Offence (Section 436), Bail in a Non-Bailable Offence (Section 437) and Anticipatory Bail (Section 438).
The first two categories are distinguished from the third where the former requires the arrest of an accused individual while the latter requires the anticipation of an arrest for a non-bailable offence; additionally, the distinction between Bailable and Non-Bailable Offences is made under Section 2, Clause A (Schedule I) of the Code of Criminal Procedure, 1973.
Bail in a bailable offence is a right of the accused individual while Bail in a non-bailable offence and Anticipatory Bail lie on the crossroads of the interests of the state and society, and the fundamental provision of personal liberty of the accused individual.
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This article explaining the Provision of Bail under the Code of Criminal Procedure, 1973, is written by Vikranta Pradeep Barsay a student of National Law University and Judicial Academy, Assam.
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