Bail originates from the French word “Baillier” signifying “to give or deliver”. Bail refers to the temporary or conditional release of an accused from police custody or judicial custody, subject to certain conditions, while the trial is ongoing. The concept of bail originates from the broader principle under criminal jurisprudence that an accused is innocent until proven guilty. Bail is a conditional release of a person arrested for a crime.
Bail is necessary to ensure the life and personal liberty of a person is protected under Article 21 of the constitution. A person without being proven guilty cannot be detained over a long period of time while the investigation or trial is pending. Bail is important as it ensures fair trial, a cornerstone of Article 21. Whether bail is granted to the accused, depends on the type of offence- i.e. in bailable offences (bail becomes a right) and in non-bailable offences (bail is granted according to the discretion of the court).
Consulting best criminal lawyers can help you comprehend your rights and the legal remedies available under Indian law if you need legal assistance with bail concerns.
What is Bail?
Bail is the provisional release of an accused from custody during the course of trial based on certain conditions of monetary bond, surety, promise to appear before court when called upon. In the Code of Criminal Procedure, bail is dealt with in the provisions of Section 436 to 450 now, Section 479 to 491 in the Bharatiya Nagarik Suraksha Sanhita. Bail is granted by the court when the prima facie case is not made, the accused’s attendance can be secured at trial, there is no risk of tampering of evidence and witnesses, safety of society is ensured.
Why is Bail Important in Criminal Cases?
Bail is important in criminal cases as over 70% of the prisoners in our correctional administration system are undertrials. That is, they have not been convicted yet but are detained unnecessarily. A number of individuals who may at the end of trial be found innocent often spend years in pre-trial custody. Bail is essential to combat prison overpopulation. Bail ultimately protects the rights of the accused, until a decision is reached by the court. Bail is essential as it protects the fundamental right of the accused, Article 21, the right to life and personal liberty of the accused during investigation and trial, allowing him to arrange legal representation in the trial, protecting him from social stigma, family isolation, loss of job, etc.
Read our guide to get a better understanding on the rights of accused.
Types of Bail in India
There are four types of bail in India :
- Regular bail: Regular bail is applied by an accused once he is arrested by the police or is in judicial custody, it can be claimed for both bailable offences and non-bailable offences. It depends on the discretion of the Court. It is governed by Section 437-439 of CrPC (now Section 480-483 of BNSS)
- Anticipatory Bail: An accused may apply to the High Court or the Court of Session for anticipatory bail that he shall be released on bail on his arrest when there is reasonable apprehension of him being arrested as per Section 438 CrPC (Section 482 BNSS).
- Interim Bail: It is also called as temporary bail while application for regular bail/ anticipatory bail is underway. Interim bail may be converted to regular bail.
- Default Bail: A person is entitled to default bail when the chargesheet is not filed by the police within 90 days from date of arrest, governed by Section 187(3) BNSS (Section 167(2) CrPC).
Difference Between Bailable and Non-Bailable Offences
Bailable and Non-Bailable Offence is defined under Section 2 (a) of the CrPC, Section 2 (1) (c) of BNSS.
A bailable offence is less serious in nature, first schedule offence where bail is a matter of right, that is, the accused is entitled to be released on bail upon execution of a bond or surety. It is governed by Section 436 of CrPC. Section 436 of CrPC is mandatory in nature and the court or the police have no discretion in the matter. Anyone detained for a crime for which they are eligible for bail must be released. The only discretion is whether to release the accused either on a personal bond or with sureties.
A non-bailable offence is more serious, that is, bail is granted not as a matter of right, but as a matter of discretion by the Court. It is laid down in Section 437 of the CrPC. In a non-bailable case, this clause grants the Court (apart from the High Court or Court of Session) the discretion to release an accused person on bail. It lists down circumstances when bail will not be granted or when bail be granted with specific conditions etc. The court weighs factors such as the gravity of the offence, prior criminal record, risk of fleeing, and danger to the community.
Who Can Apply for Bail in India
Any of the following categories of persons can apply for bail in India:
- Any arrested person (in police or judicial custody)
- Any person reasonably apprehending arrest
- Juveniles and special categories
Step-by-Step Bail Procedure in India
Step 1: Filing Bail Application:
The lawyer on behalf of the accused drafts and files a bail application before the competent court (the court which has the jurisdiction to try the offence: Magistrate, Sessions Court or High Court) as per the nature of offence. The application includes the details of the accused, the grounds for bail and the sureties proposed.
Step 2: Court Hearing
After notice is given to the prosecution by the court, for a chance to oppose the application. Hearings are conducted where both sides present their arguments. During Court hearings the prosecution may highlight risks, for example- the gravity of the alleged offence, or the danger of evidence tampering, while the defendant lays down the grounds for bail, that the prima facie balance of convenience is in his favour.
Step 3: Court Decision
The court passes an order either granting or refusing bail. In non-bailable cases, the order must record brief reasons. If bail is refused, the accused may approach a higher court against such an order.
Step 4: Bail Bond and Conditions
The accused must execute a personal bond on grant of bail, and if required, he must also furnish surety bonds. The court may (oftentimes) impose conditions, which must be complied by the accused strictly. These are formalities required to give effect to the actual release of the accused.
Read our detailed guide on bail procedure for enhanced understanding.
Common Conditions Imposed while Granting Bail
- That the accused shall execute a surety bond of a specified amount to secure his appearance.
- That the accused will appear in court in compliance with the terms of the bond he executed.
- That the accused shall not leave the country without the permission of court and shall surrender their passport.
- That the accused shall fully cooperate with the investigative agency, give his attendance at the local police station regularly
- That the accused is prohibited from providing any inducement, threat, or promise to any witness or anyone who is aware of the case’s circumstances.
- That the accused is prohibited from tampering with the evidence of the case.
When Can Bail be Rejected
The courts can reject bail on a number of grounds:
- Seriousness of Offense: the accused is charged with heinous offences such as murder, rape
- Criminal History or Repeat Offender: the accused has criminal antecedents
- Risk of Absconding: there is a chance that the accused is likely to abscond
- Tampering with evidence: there is a risk that the accused might destroy evidence, influence witnesses
What Happens After Bail Is Granted?
Once bail is granted, the accused person who is released on bail must comply strictly with the conditions imposed by court. That is, he must attend each and every hearing as per the scheduled dates, he must refrain from any conduct that hampers the investigation, and must cooperate with investigative agencies. In case of violation of conditions of bail, such accused person can be re-arrested and the bail is cancelled.
Can Bail Be Cancelled?
Cancellation of Bail after it has been granted is governed by Section 437(5) and Section 439(2) of the CrPC. Bail can be cancelled by the court that granted it or by a higher court (A High Court or Court of Session). Cancellation of bail is different from refusal of bail on application. Cancellation happens once bail has been granted initially. The grounds for cancellation include: violation of bail conditions, fresh offence after release, tampering with evidence or witness, interference with justice, etc. Thus, cancellation requires specific circumstances.
Bail in Special Cases
Certain offences (special category) have a different standard of bail:
- NDPS offences: twin conditions of bail under Section 37, that prosecution is given a chance to present its case and the court is satisfied prima facie that accused is not guilty
- Cybercrime offences: stricter caution as there is risk of digital evidence being destroyed
- Economic Offences: like PMLA, 2002 have similar twin conditions under NDPS.
Importance of Hiring a Criminal Lawyer for Bail Matters
The complexities of bail make it essential to hire a criminal lawyer in Bangalore.
- Drafting correct form and type of bail applications before correct forum
- Presenting strong, compelling arguments addressing the objections of the prosecution
- Handling urgent hearings, emergency procedure for urgent relief
Conclusion
Bail is not merely a part of criminal procedure, it is a constitutional safeguard, enshrined in the fair trial principle that every person is innocent until proven guilty. Bail differs from a matter of right in a simple, bailable offence to the court’s discretion is grave, serious, non-bailable offences. It differs in special categories of offences such as NDPS, cyber offences, economic offences. It is necessary to understand the type of offence to understand the type of bail available. It is a conditional release of an accused from custody while the investigation and trial is ongoing to prevent overcrowding in prisons. It is necessary to invoke a lawyer in case of an arrest so that he/she may take timely legal action and secure bail for the accused so that there is no arbitrary, excessive deprivation of liberty without due reason. Visit our page for legal consultation in bangalore.
FAQs
1. Who can apply for bail in India?
Any person arrested, apprehending arrest, juveniles, special categories of persons.
2. What factors do courts consider before granting bail?
Courts take into consideration the seriousness of offence, criminal antecedents, risk of absconding, or tampering with evidence.
3. Can bail be cancelled after it is granted?
Yes, bail can be cancelled after it is granted if there is any violation of the bail conditions.
4. What happens if bail is rejected?
The accused may file a new application before higher court.
5. How long does the bail process take in India?
It takes approximately a few days to a few weeks according to workload.
6. Is a lawyer necessary for applying for bail?
It is advisable but not compulsory to engage a lawyer for better understanding of procedure and quick action.
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