Before you forget: brush

your knowledge on
Provisions relating to Bail

Introduction
In general, the term bail means the temporary release of an accused
person on a temporary basis. As the term bail has been derived from the
French word bailer which means to deliver or to give. The term bail has
been used for a long time.  As defined in the oxford dictionary bail is the
absolution of an accused person temporarily awaiting the trial or a sum of
money is lodged by the accused person as a guarantee for his
appearance in the court.

The provisions regarding the bail and bonds have been specified
from section 436 to 450 of the Criminal Procedure Code. These provisions
envisaged in the code gives the brief regarding the provisions of the bail.

The concept of bail is that it acts as security lodged by the accused

person on the basis of which he can be released on a temporary basis but
needs to appear in court whenever required by the court. The process of
bail takes place while the trial of the accused person is still pending.
Generally, a person seeks this option in order to get himself released
from the police custody. The process of bail is a legitimate process.

Basic Rule
India is a democratic country and the basic concept of democracy is that
every individual must have personal liberty and freedom. It is the basic
right of an individual which is protected by the state. Thus the concept of
bail and personal liberty goes hand in hand and therefore every individual
including the accused person has the right to seek bail in order to get
himself released from custody until and unless proven guilty by a court of
law. As enshrined under Article 21 of the Indian Constitution that the life
and personal liberty of a person can’t be deprived except by the
procedures laid down by the law.

Object
The basic goal behind arresting and detaining a person behind the jail is
that when the accused is required by the court during the trial he must
appear in court for the trial. The process of bail is a complex mechanism,
it is considered to be very delicate and conflicting at the same time. The
reason it is very delicate is that an accused seeks for bail when the trial is
pending in the court and it can’t be said that the accused is innocent or
culprit. Sometimes when the bail is not granted to the accused person it
may curtail the liberty of the innocent accused or while granting bail may
result in giving extra-liberty and freedom to the actual culprit.

It is a comprehensive statement used in general that an accused person

may escape his crimes but an innocent shall not pay the price of some
other person’s deed. Based on this ideology the code of criminal
procedure has bifurcated the offences into two categories.

Types of offences
 Bailable offence
 Non-bailable offence

Bailable offence
The bailable offence is the type of offence in which an accused person is
granted bail. This type of offences is generally punishable by the court
with less than three years of imprisonment. In the case of bailable
offence the chances of getting bail are much higher.

Under section 2(a) of the code, the term bailable offence has been
described as the offence which has been specified in the first schedule of
the code or if the offence is considered to be bailable by the law in force
during the time.

Non-bailable offence
The non-bailable offence is the type of offence for which an accused
person is not entitled to get bail. These are the offences which are non-
bailable nature and are not shown as bailable under the first schedule of
the code. These offences are grievous in nature when compared to
bailable offences. In the case of non-bailable offences the punishment is
three years or more.

Cases in which bail may be granted (whether

release on bail is mandatory?)
In the case of bailable offence it is mandatory to grant bail to the
arrested person and in case of non-bailable offence it depends upon the
discretion of the court. Section 436 of the code talks about the cases in
which bail can be taken and section 437 of the code talks about the cases
in which the bail may be taken in case of  non-bailable cases.

Cases in which bail to be taken (section 436 of

CR.PC)
In this case, if a person who is not guilty of any non-bailable offence and
gets arrested without a warrant by the police authority and is prepared to
give bail, then it is the duty of the police authorities to release him. The
person arrested may be released on the bond without submitting any
sureties.
Appealability of the order (section 439 of the
code)
Section 439 of the code states that any orders passed under section 436
of the code shall be appealable.

1.   The order made by the magistrate to the session’s judge is

appealable.
2.   In case when the court of sessions passes an order to the court
where an appeal lies from an order made by such court.

Investigation incomplete (section 167 of the

code)
Under section 57 of the code states that a person arrested or taken into
custody has to be released after 24 hours. Within those 24 hours, he has
to be presented before the magistrate with a notice. The period of 24
hours can be extended if the investigation regarding the offence or crime
committed has not been completed. Section 167 states that in order to
extend the period of 24 hours for the purpose of investigation prior order
has to be obtained from the magistrate. If the investigation is not
completed the person arrested or detained shall be released. The period
of detention shall not exceed 90 days (in case where the offence is
punishable with the death penalty or life imprisonment) and 60 days (in
case where the offence is punishable for a term less than ten years).

The maximum period for which an under-trial

prisoner can be detained (section 436-A of the
code)
Under section 436 A of the code states that the detention period for an
undertrial prisoner other than the one who is accused of the criminal
offences punishable with death or life imprisonment shall be released
from detention if the person has been detained for one half of the
maximum sentence provided for the offence committed by him.

When may bail be taken in case of non-

bailable offences (section 437 of the code)?
It depends upon the discretion of the court or the police officials that they
may release the person arrested for non-bailable offences until and
unless there exists any reasonable grounds or apprehension that person
arrested has committed any crime and is not guilty of any criminal
liabilities which is punishable with life imprisonment or the death penalty.

Bail to require accused to appear before the

next appellate court (section 437 A of the
code)
Under section 437A of the code, it has been stated that in order to appear
in the higher court as and when the higher court issues the notice against
the judgment of the court it becomes mandatory for the trial court or the
appellate court which requires the accused to execute the bail bond with
sureties.

What do you mean by the Anticipatory Bail?

Under section 438 of the code, it has been stated that the term
anticipatory bail can be understood through the expression anticipatory.
Anticipatory bail is the bail granted by the court in anticipation of the
arrest. When this bail is granted to a person it ensures that in case if the
person is arrested in the near future then such person shall be released
on this anticipatory bail. No questions can be raised on the release unless
the person executing this bail is arrested and therefore it totally depends
upon the arrest that the order granting such bail becomes operative.
The following provision of section 438 of the code was recommended by
the law commission. On its 48th report, they expressed their
observations regarding the provision of anticipatory bail and stated that
such provision is a useful addition to the code but it should be used in
extraordinary or exceptional cases only.

Section 438 of the code runs as follows:

When any person having the reasonable apprehension that he may be

accused of committing the offence of non-bailable nature then such
person can apply for anticipatory bail in the high court or the sessions
court. The role of the court having competent jurisdiction shall give him
direction under section 438 of the code that during the time when he gets
arrested he shall be released on bail after taking into consideration the
following conditions shall accept or reject the application filed for
anticipatory bail by the person getting arrested.

Following are the factors:

 The accusation made shall be grave and serious

 Likelihood of the applicant to flee or abscond from justice
 When the accusation is made with the intention of humiliating or
injuring the person by making him arrested through that accusation.

Conditions under section 438 of the code

involve the following things.
 The applicant filing for the anticipatory bail shall have the
reasonable apprehension of getting arrested
 The arrest of such person shall be in respect of the accusation of
him committing non-bailable offence or cognizable offence and the
courts having competent jurisdiction shall direct that in the event of
the arrest the person shall be released.
Following conditions are imposed on the
person seeking the anticipatory bail by the
courts having competent jurisdiction
 It is the duty of the person to appear or make himself available
whenever required by the police officials for the investigation.
 He must not induce or threat for dissuading him from disclosing
facts of the case.
 The applicant shall not go outside the territory of India without
taking the prior permission of the court.
 Or if the following conditions stated in point one and two are fulfilled
and such person is ready to give bail, he should be released from
custody subject.
Amiya kumar v. state of west Bengal 1978 Cri.LJ 288

In the instant case, it was held that section 438 of the code empowers
both the high court and the session’s court to grant the anticipatory bail.
Both the high court and the Sessions court have the competency to grant
this bail. If the Sessions court rejects the petition filed by the applicant
for the anticipatory bail then he can’t file the petition for the same in the
high court.

D.R. Naik v. the State of Maharashtra, 1989 Cri.LJ 252

In the instant case, it was held that if a person files an application for
anticipatory bail and it is rejected by the sessions court, this will not put
the bar over the person filing the petition to approach High court. But if
the person first approaches the high court and the petition filed by him
gets rejected, then he can’t approach the session’s court for filing the
petition on the same ground.

Malimath Committee Report

The Malimath committee gave its observation regarding the provision of
anticipatory bail. They stated that the provision of section 438 is often
misused by the people. Such misuse of the provision is illegal. The
committee after the following observation suggested two conditions or
requirements for the purpose of retaining the provision.

The following conditions are as follows:

 Before granting the anticipatory bail the court shall hear the public
or the government prosecutor
 When a person files a petition of anticipatory bail it must be heard
by a court having competent jurisdiction.

Distinction between Bail and the anticipatory

bail
Under section 437 of the code, it has been stated that a regular bail is
available and granted to a person after the arrest when he is in the
judicial or police custody,  however in the case of an anticipatory bail is
available to a person before the arrest or if the person has reasonable
apprehension of arrest.

Conclusion
It can be concluded that the concept of bail is that it acts as security
lodged by the accused person on the basis of which he can be released on
a temporary basis but needs to appear in court whenever required by the
court. The process of bail takes place while the trial of the accused person
is still pending. Generally, a person seeks this option in order to get
himself released from police custody. These provisions envisaged in the
code gives the brief regarding the provisions of the bail. The process of
bail is a legitimate process.