ASSIGNMENT ON CONCEPT OF BAIL

UNDER INDIAN LEGAL SYSTEM

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SUBMITTED TO :- SUBMITTED BY:-

Ms. Rupali Sharma Arunima
Class:B.A.LLB(8TH Sem)
Roll no.:609
 ACKNOWLEDGMENT

I would like to express my heartfelt gratitude to my college faculty and project guide, Miss.
Rupali Sharma, for their unwavering support and guidance throughout the duration of this
project. Their expertise, encouragement, and mentorship have played a crucial role in shaping
the project’s direction and ensuring its successful completion. I am also thankful to my fellow
classmates who have actively contributed to the project with their valuable insights and
collaborative effort.
I would like to acknowledge the college administration for providing us with the necessary
resources and facilities to carry out this project. Their constant support and belief in our
abilities have been instrumental in our project’s accomplishment. Additionally, I extend my
appreciation to my family and friends for their continuous encouragement and understanding
during this challenging yet rewarding journey.
Thank you.
 TABLE OF CONTENTS

ACKNOWLEDGMENT……………………………………………………………………2
TABLE OF CONTENTS……………………………………………………………………3
ABSTRACT…………………………………………………………………………………4
INTRODUCTION…………………………………………………………………………..5
HISTORICAL DEVELOPMENT…………………………………………………………..6
TYPES OF BAIL……………………………………………………………………………7
CONDITIONS UNDER WHICH BAIL CAN BE GRANTED IN INDIA…………………8
BAIL REFORMS IN INDIA………………………………………………………………...10
CONCLUSION………………………………………………………………………………12
BIBLIOGRAPHY……………………………………………………………………………13
 ABSTRACT

The concept of bail has a long history and deep roots in English and American law. In
medieval England, the custom grew out of the need to free untried prisoners from disease-
ridden jails while waiting for the delayed trials to be conducted by traveling justice. Prisoners
were bailed or delivered to reputable third parties of their choosing who accepted
responsibility for assuring their appearance at trial. Suppose the accused did not appear; his
bail would stand the test in his place. Eventually, it became the practice for property owners
who accepted responsibility for accused persons to forfeit money when their charges failed to
appear for trial. From this grew the modern practice of posting a money bond through a
commercial bondsman who receives a cash premium for his service and usually demands
some collateral. In the event of non-appearance, the bond is forfeited after a grace period of
several days during which the bondsman may produce the accused in Court. Usually, bail is a
kind of asset or property given by the court as security for consideration of release from being
arrested or to avoid being jailed, as an identification that the accused or suspect will be
present on the day of hearing or trial and where if he fails to appear before the court on the
given day then his property may be sized or forfeit the bail. The amount deposited shall be
returned at the trial's end if the accused is present at every hearing, regardless of whether the
accused has been found guilty or acquitted.
Bail is divided into three types which is regular bail, interim bail, anticipatory bail is
explained below and further conditions under which bail can be granted in India. Conditions
governing bail in a bailable offence and conditions governing bail in a non-bailable offence.
 INTRODUCTION

The concept of bail, which is a basic part of the Indian criminal jurisprudence and it is well
recognized principle among all the judicial systems of the world. Bail, in law, means
procurement of release from prison of a person awaiting trial or an appeal, by the deposit 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 bonding
company. Failure of the person released on bail to surrender himself at the appointed time
results in forfeiture of the security. Courts have greater discretion to grant or deny bail in the
case of persons under criminal arrest.
Bail is the conditional release of a person accused of a crime, for an amount, pledged for the
appearance of the accused when the same is due in court. The person paying the money acts
as the surety. Getting bail is one of the rights of the accused in a civil case while it is the
discretion of the bail granting authority in a criminal case.
The Criminal Procedure Code, 1973, does not define bail, although the terms bailable offence
and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: " Bailable
offence means an offence which is shown as bailable in the First Schedule or which is made
bailable by any other law for the time being enforce, and non-bailable offence means any
other offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in
criminal cases. The amount of security that is to be paid by the accused to secure his release
has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary
cap on the bond.
ORIGIN OF THE WORD BAIL:-
Bail is derived from the old French verb baillie, which means giving or delivering. The word
is also related to the Latin word bajulare, meaning to bear a burden. It allows individuals to
live their lives until they are brought to trial, giving them a taste of freedom while preparing
their defense. Bail itself has a fascinating history – and how it has been applied often says
quite a bit about the relationship between the legal system and those who have been accused
of a crime. Bail origins are ancient, but the concept has been familiar throughouthistory.
While bail can be traced to ancient Rome, our traditional American understanding derives
primarily from English roots. When the Germanic tribes, the Angles, the Saxons, and the
Jutes migrated to Britain after the fall of Rome in the fifth century, they brought with them
the blood feud asthe primary means of settling disputes. Whenever one person wronged
another, the families of the accused and the victim would often pursue a private war until all
persons in one or both of the families were killed.
 HISTORICAL DEVELOPMENT

Bail can be traced back as early as 399 BC when Plato first tried to create a bond to free
Socrates. In medieval times, the circuit courts in Britain created a system of bail. The concept
of modern bail chiefly originated from all the medieval laws governing it.
Kautilya’s Arthashastra also mentioned that avoiding pre-trial detention was ideal therefore
the concept of bail was somehow prevalent in ancient India too. During the 17th century that
was the Mughal period, bail was practised in the form of ‘Muchalaka’ and ‘Zamanat’.
Historical genesis the ethos and injunctions of ancient Hindu jurisprudence required,among
other things, suitable disposal of disputes by the functionaries responsible for the
administration of justice. No laxity could be afforded in thematter as it entailed penalties on
the functionaries. Thus, a judicial interposition ensured that an accused person was not
unnecessarily detained or incarcerated. This indeed devised practical modes both for securing
the presence of a wrongdoer and spare him of undue strains on his freedom.

DURING MUGHAL PERIOD:-

The Indian legal system is recorded to have an institution of bail to release an arrested person
on his furnishing a surety. This system finds reference in the seventeenth-century travelogue
of Italian traveller Manucci. Manucci himself was restored to his freedom from imprisonment
on a false theft charge. The then ruler of Punjab granted him bail, but Kotwal released him on
bail only after Manucci furnished a surety. Under Moghul law, an interim release could be
actuated by considering that if the dispensation of justice got delayed in one's case,
compensatory claims could be made on the judge himself for losses sustained by the
aggrieved party.
The advent of British rule in India saw a gradual adaptation of the principles and practices
known to Britishers and was prevalent in the common law. The East India Company‟s total
control over Nizamat Adalats and other Fouzdary Courts in the mofussil saw gradual inroads

BAIL UNDER THE CRIMINAL PROCEDURE CODE,1973:-

The word bail has not been defined in the Code of Criminal Procedure. However, the Codes
of 1898 and 1973 have defined the expression „bailable offense‟ and „non-bailable offense,
‟respectively in Section 4(1)(b) and Section 2(a). In the latter section, the expression
„bailable offense‟ has been defined to mean an offense which is shown as bailable in
Schedule I, or which is made bailable by any other law for the time being in force, and the
expression„ non-bailable‟ has been defined to mean any other offense.
 TYPES OF BAIL

There are three types of bail:-

1. Regular bail
When a person commits a cognizable non-bailable offence (offences which are so grave that
a police officer can arrest the accused without a warrant or start the investigation without the
permission of a court), the police can take him under custody and after the custody period
expires he must be sent to jail. Section 437 and 439 of the Cr.P.C gives the accused the right
to be released from such custody. So, a regular bail is basically the release of an accused from
custody to ensure his presence at the trial.

2. Interim bail
This bail is granted as a temporary means and granted for a short period of time, either during
the time of pendency of an application or when the application of anticipatory or regular bail
is pending before the court. Interim bail is always conditional and can be extended, but if it
expires before the accused has been granted an anticipatory bail or regular bail and he fails to
pay the amount required for continuing the bail, then he loses his right of freedom and will be
taken under custody.

3. Anticipatory bail
Anticipatory bail is self-defining. It is a type of bail which is given to someone who is in
anticipation of getting arrested for a non-bailable offence by the police. This is a very
essential bail in recent times because business rivals and other influential people often try to
frame their opponents in false cases. This is an advanced bail mentioned under Section 438 of
the Act. A person who has been granted an anticipatory bail cannot be arrested by the police.
CONDITIONS UNDER WHICH BAIL CAN BE
GRANTED IN INDIA

CHAPTER XXXIII (S.436-450) of the Code of Criminal procedure deals with bails and
bonds. There are certain conditions under which bail can be granted and we shall discuss the
as follows:

CONDITIONS GOVERNING BAIL IN A BAILABLE OFFENCE:-

Section 436(1) of Cr.P.C. lays down the conditions under which bail can be granted for
bailable offences committed under the Indian Penal Code (1862). Whenever a person is
arrested or detained by police for any non-bailable offence is produced before the court and
he is prepared to give bail, he may be released on bail.
In this case, bail can either be granted by the police officer who has made the arrest or by the
Court before which the person has been produced. Here bail will ordinarily be granted against
furnishing of surety by the arrested person. However, if the arresting officer or the court is
satisfied that the person is indignant and cannot furnish surety, he may be discharged on bail
on the execution of a bond without sureties for his appearance.
Whether a person is indignant or not is also explained under this section. If within a period of
one week of arrest, the person fails to give bail, he will be considered as an indignant person
and will be eligible to be discharged on the execution of a bond without sureties.

At the time of granting bail to any person, the bail granting authority must be satisfied that:
1. the accused appears to be innocent, i.e. he has most probably not committed the
offence.
2. that further enquiry for the offence is required to be conducted to find out whether he
has committed the offence.
3. the offence is not a major one, i.e. it is not an offence punishable with death, life
imprisonment or imprisonment up to 10 years.

Sub-section (2) of this section lays down the conditions under which bail may be refused
even if the offence is of bailable nature. If a person fails to comply with the conditions of
appearance as laid down in the bail-bond, he may, in any subsequent occasion in the same
case, if arrested or brought before the court, be refused bail.
In India, court cases are long-drawn and may continue for years. For various reasons, the
trying court may take a long time to give its verdict. Section 436A was inserted in CrPC to
ensure that an accused person is not detained for an inordinate length of time. Any person, if
accused of any offence, other than an offence where the prescribed punishment is death, will
be released in bail-bond, during the period of investigation, if he has already been detained
for more than half the length of maximum punishment prescribed for that offence. However,
the section also gives the court the discretion to extend the period of imprisonment beyond
this period, if so satisfied, but in no circumstances, up to the maximum length of punishment
prescribed for the offence.
CONDITIONS GOVERNING BAIL IN A NON-BAILABLE OFFENCE:-

Right to liberty as enshrined in the Constitution– these two principles are required to be
analyzed in conjugation, in deciding whether an accused can be granted bail in respect of a
non-bailable offence. The Court has to strike a balance between the two. The Hon’ble
Supreme Court in the matter of Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) has
observed that “Liberty is to be secured through a process of law, which is administered
keeping in mind the interests of the accused, the near and dear of the victim who lost his life
and who feel helpless and believe that there is no justice in the world as also the collective
interest of the community so that parties do not lose faith in the institution and indulge in
private retribution.”
Section 437 of the Code of Criminal Procedure,1973 states that bail can also be granted for
committing non-bailable offences. However, here the discretion is that of the Court and the
accused cannot claim it as a matter of right. Under this section, if a person is arrested without
a warrant and produced before a court, any court other than the High Court or the Court of
Sessions may grant him bail. However, the Court may not grant bail if it has sufficient
grounds to believe that the person is guilty of an offence punishable with death or life
imprisonment. The Court may also refuse bail if the offence is cognizable and the person has
been previously convicted of an offence punishable with death or imprisonment for seven
years or more or convicted in two or more than two occasions against an offence punishable
with imprisonment for three or more years.
Further, the Court may also grant bail if the accused is a woman or a child, evidence of the
crime is not strong enough and further enquiry is warranted, FIR has not been lodged
promptly and the accused is seriously indisposed or infirm.
The mere reason that the examination of the accused needs the witness, will not be sufficient
cause for refusing bail. At the same time for offences punishable with death or imprisonment
for seven years or more, the Public Prosecutor will be given an opportunity of hearing and
opposing bail, before the same is granted.
If the accused is suspected to have committed, abated, conspired or attempted to commit a
crime punishable with imprisonment with seven or more years, he shall be released on bail on
the imposition of the following conditions:
1. attendance as laid down in the bail bond;
2. The undertaking of not committing any similar offence; and
3. The undertaking of not making any direct or indirect inducement, threat or promise to
any person acquainted with the facts of the case.
Conditions governing bail in anticipation of arrest:
Section 438 of the CrPC lays down the procedures for getting bail in anticipation of arrest for
a non-bailable offence. The provision was incorporated as per the recommendation of the
report of the 41st Law Commission. There should be an element of apprehension, i.e. the
person seeking bail feels that he will be framed or arrested in a false case or someone having
enmity with him will try to get him arrested on the pretext on a fabricated charge. The
applicant has to present before the Court certain special facts or circumstances which makes
him believe would result in his arrest. This is however left to the satisfaction of the court,
whether such facts would be considered good enough for granting bail.
Anticipatory bail can be granted only a High Court or a Court of Sessions.

Other conditions affecting grant of anticipatory bail

 The person concerned will have to make himself available for interrogation by the
police.
 He shall not make any direct or indirect inducement, threat or promise to any
person acquainted with the facts of the case.
 He will not leave the country without the prior permission of the court.

BAIL REFORMS IN INDIA:-

 Detention of undertrials should be an exception and not a rule in law. The Indian
Legal system relies on the presumption of innocence unless otherwise proven guilty.
In practice, this is not really true. The nature of the offence often weighs heavily on
the mind of the judge or magistrate who grants or refuses bail. If the offence is grave
enough, bail is often not granted and the cardinal principle that the offence is yet to be
proved is often ignored. Thus, the importance of FIR is paramount in the Indian Legal
system. I, therefore, feel that this excessive reliance on the gravity of the offence as
stated in the FIR has to be carefully examined. Grant of bail should not depend on the
sections in which a person is charged, i.e. on the nature and gravity of the offence
(which is yet to be proved), but it should be evidence-based and the careful
understanding of the judge as to the probability of the accused committing the
offence. If required thorough, but quick enquiry may be conducted to find out whether
bail may be granted or not. Another important area, already recommended by the Law
Commission is revamping the system of the arrest. The system should be made more
rational, fair and transparent. For this, Section 41 of Cr.P.C. should be amended. This
would go a long way in preventing arbitrary arrests and result in fewer people seeking
bail before the police and the court. Most importantly, it would help the bail granting
authority take a rational decision based on the merit of the case.
 There are various statutes and sections in-laws which lay emphasis on the
presumption of guilt which is contrary to principles of natural justice. For example, It
is very hard to get bail for offences under the Narcotic Drugs and Psychotropic
Substances Act, 1985, The Scheduled Caste and Scheduled Tribes (Prevention of
atrocities Act), 1989, as these laws lay emphasis on the presumption of guilt.
Similarly, Section 375 (Rape) and Section 498A (Cruelty against a married woman)
 of IPC also lay presumption on guilt. These sections were drafted to prevent people
from committing atrocities against women and the traditionally oppressed classes,
which is no doubt necessary to prevent crimes against them, but at the same time, the
sections bypass the principle of innocence prior to being proved guilty. Thus, all
statutes and laws should emphasize the principle of ‘innocence unless proved guilty
and should be amended to the extent required.

One classic example in this regard is the judgement delivered by a Supreme Court Bench in
the case State of Kerala v. Rajesh (2020). Here the decision of Kerala High Court, granting
bail to the accused under the Narcotics, Drugs & Psychotropic Substances Act, 1985 was
turned down, upholding the appeal of the State Government, as the apex court thought that
Section 37 of the Act, which puts the onus of proving innocence on the accused, was
overlooked by the High Court. In the larger context, we have to admit that this section goes
against the principles of liberty and natural justice of our constitution and the Supreme Court
too, preferred not to examine it.

 The bail system relies on sureties and bonds which often act as a deterrent for the
poor. Repeated bail petitions get rejected as the poor do not have the monetary means.
Thus, there is a common notion that bail is not for the poor. Therefore granting of bail
should not be only on monetary considerations. Other means should be devised.
 Section 436A of the Cr.P.C. perhaps needs further reforms. In the Indian system of
jurisprudence, under-trial prisoners suffer a lot. The prosecution, which is burdened
with cases, often make inordinate delay in completing enquiry and filing charge
sheets. This can result in the accused languishing in custody for years. This can
continue up to half the period of maximum punishment prescribed for the offence and
even up to the maximum length of punishment prescribed for the offence. This goes
against the principle of life and liberty guaranteed by the Constitution and even worse,
valuable years of his life get wasted if the accused is found not to be guilty of the
offence at the end of the trial. This is a gross crime against humanity which can never
be rectified.
 Finally, we come to the most important issue of speedy justice. If justice is fast and
verdict comes quickly, then many poor under-trial prisoners, who often do not get bail
for economic reasons or reasons of caste, creed or backwardness, are spared from
languishing behind the bars. Thus, reforms in the Indian Judiciary should primarily
focus on this issue and it will naturally address the problems of bail in India, along
with many other problems.
 CONCLUSION

Bail is an important check and balance to ensure that no innocent person is punished until
proven guilty. But the complicated system of bail in the country’s criminal law system often
fails to appreciate it. Grant or refusal of bail depends on factors that are remotely connected
with the merit of the case. The recommendations of the Law Commission in its 268th
report on bail reforms are important and they should be implemented so that a fair and
transparent system of bail evolves in our criminal law system. This would go a long way in
upholding the rights of life and liberty enshrined in the Indian Constitution.
From the previously mentioned dialog plainly Bail matter assumes a critical part in a criminal
case, since it is a definitive objective of the denounced. Bail is the privilege of the gathering.
Anybody needs a bail who is captured living in prison implies they need a bail whenever. To
set free, or convey from capture, or out of care, on the endeavor of some other individual or
people that he or they will be in charge of the appearance, at a specific day and place, of the
individual bailed. At the point when bail has been orchestrated, the blamed individual is
permitted to go free until the trail. Be that as it may, in the event of non-bail capable offense,
there is no particular arrangement in Cr.P.C of Bangladesh. The anguish of the general
individuals will be diminished and the judges won't be one-sided by the power of the political
party or controlling gathering to satisfy their need on the off chance that it is conceivable to
embrace fitting arrangements in Bangladesh. So we ought to present particular arrangement
of bail if there should arise an occurrence of non-bail capable offense. For instance, as
indicated by segment 339(c) of the CrPC, a Magistrate can't go past the time scope of 180
days to close the trial and a Session Judge gets 360 days to finish up it. In the event that the
trial isn't finished inside this time traverse, the blamed despite the fact that he is charged for
non-bail capable offense, might be discharged on bail.
 BIBLIOGRAPHY

 https://www.mondaq.com/india/court-procedure/722828/bail-considerations-and-
imposition-of-conditions

 https://criminallawstudiesnluj.wordpress.com/2020/02/02/the-complex-world-of-bail-
in-indias-criminal-justice-system/

 https://amnesty.org.in/take-action/bail-not-jail-demand-bail-reforms/

 https://www.brainboosterarticles.com/post/concept-of-bail-a-historical-perspective