BAIL

INTRODUCTION
• Bail is one of the vital components of the Criminal
Justice System.
• The term bail has not been defined in the criminal
procedure code.
• Wharton’s Lexicon and Stroud’s Judicial Dictionary
• The bail, in lay man’s term, means a guarantee or
assurance given by a person arrested to appear
before a competent court at a specified time at a
specified place.
• The provisions of law which govern the bail are
provided under Chapter XXXIII of CrPC, Section
436 to 450 which is the premier statute laying
down criminal procedure in India.
• The bail has mainly two conflicting concerns-
right of individual’s liberty & the investigational
rights of the police
• Bail-Human Right through UN Declaration of
Human Rights 1948.
 THE OBJECTIVES OF THE BAIL

• Firstly- helps the assurance of reappearance of

the accused
• Secondly- it prevents the un convicted
individuals from suffering in the
imprisonment.
 Sanjay Chandra v CBI
• 2G spectrum case.
• The courts owe more than verbal respect to the
principle that punishment begins after conviction,
and that every man is deemed to be innocent until
duly tried and duly found guilty.
• Necessity is the operative test in determining
whether bail can be granted or not.
• Society sentiments cannot be ground for rejecting
bail.
• Rooted in the socitey
 Types of Bail
• Bail in a Bailable Offences- 436
• Bail in a non Bailable Offences- 437
• Default Bail- 167(3)
• Interim Bail- 438(3)
• Anticipatory Bail- 438
 Section 436
• Bail in a bailable offences.
• Mandatory in nature
• Court or the police has no discretion in the
matter.
• The only discretion available with the police is
to release the accused either on a personal
bond or with sureties.
 Section 437
• Bail in Non bailable offences
• any person accused of, or suspected of, the
commission of any non- bailable offence is
arrested or detained without warrant by an
officer in charge of a police station or appears
or is brought before a Court other than the
High Court or Court of Session, he may be
released on bail,
• Not mandatory in nature- discretion of court.
• shall not be so released-
he has been guilty of an offence punishable
with death or imprisonment for life.
if such offence is a cognizable offence and he
had been previously convicted of an offence
punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had
been previously convicted on two or more
occasions of a non- bailable and cognizable offence
 Conditions
• such person shall not commit an offence
similar to the offence of which he is accused
• such person shall attend in accordance with
the conditions of the bond executed under
this Chapter
 Motiram v. State of Madhya Pradesh
• The chief judicial magistrate imposed a security
amount of 10,000 and a surety for the same
amount. The accused being the poor mason even
then he produced the surety for that amount but
the chief judicial magistrate rejected the surety by
saying that the properties of the surety are outside
the jurisdiction of that court. Aggrieved by the
decision of the chief judicial magistrate he moved
to the Supreme Court. Before Supreme Court there
were 3 issues those are
 ISSUES
• Can the Court, under the code of Criminal Procedure,
enlarge, on his own bond without sureties, a person
undergoing incarceration for a non-bailable offence
either as undertrial or as convict who has appealed or
sought special leave?
• If the Court decides to grant bail with sureties, what
criteria should guide it in quantifying the amount of
bail?
• Is it within the power of the court to reject a surety
because he or his estate is situate in a different district
or State?
• The number of bail projects in United States
such as Manhattan Bail Project and D. C. Bail
Project shows that even without monetary
bail it has been possible to secure the
presence of the accused at the trial in quite a
large number of cases.
• Monetary bail is not a necessary element of
the Criminal process and even if risk of
monetary loss is a deterrent against fleeing
from justice, it is not the only deterrent and
there are other factors which are sufficient
deterrents against flight.
• That concept is out-dated and experience has
shown that it has done more harm than good.
• Magistrate – bail application – inquiry into
background and conditions of accused.
• Upon his satisfaction he can be released on
execution of a personal bond.
• 3rd issue- the magistrate cannot reject the
surety on the reason that he or his assets are
outside the jurisdiction.
• Alienation in his own country.
 Rasiklal v. Kishore s/o Khanchand
Wadhwani
• Right to bail for bailable offences is an
absolute and in-defeasible right and no
discretion can be exercised as the words of s.
436 Cr.P.C are imperative and the person
accused of an offence is bound to be released
as soon as the bail is furnished.
 Aasu vs. state of Rajastan

• Recently the Supreme Court of India has given

the direction that the bail application should
be disposed off within one week.
 ANTICIPATORY BAIL

• Anticipatory bail means bail in anticipation of

an arrest. Any person who apprehends arrest
under a non-bailable offence in India can
apply for Anticipatory Bail under the
provisions of section 438 of The Code of
Criminal Procedure, 1973. The words
anticipatory bail is neither found in section
438 nor in its marginal note.
Gurbaksh Singh Sibbia v. State of Punjab

• The conditions in 437 need not to be read in section

438.
• Power to release on anticipatory bail can be
described as of an "extraordinary" character this
would "not justify the conclusion that the power
must be exercised in exceptional cases only.
• Powers are discretionary to be exercised in light of
the facts and circumstances.
• Siddharam Satlingappa Mhetre v. State of
Maharashtra
 CONDITIONS OF ANTICIPATORY BAIL FOR
THE OFFENCE UNDER SECTION 498A
• Munish Bhasin & Ors vs State
• the appellant to pay 12,500 as maintenance to his
wife and child while granting anticipatory bail to
him and his parents with reference to the complaint
filed by his wife for alleged commission of offences
punishable under Sections 498A and 406 read
with section 34 of the Indian Penal Code.
• Judge also directed to pay arrears at the rate of Rs.
12,500/- per month from August 2005, that is Rs.
3,00,000/- within six months.
• Overriding of section 125 Crpc
• Competent Court
• These conditions cannot be imposed by a
magistrate while disposing the anticipatory
bail application
 Arnesh Kumar v State of Bihar

• Offence under section 498A IPC is cognizable

and non-bailable has lent it a dubious place of
pride amongst the provisions that are used as
weapons rather than shield by disgruntled
wives.
• Crime in India 2012 NCRB report shows arrest
of 1,97,762 persons all over India in 478a
cases
• But the conviction rate is too low – 7 in 1
• Court stated that in the cases of 498A, section
41A which is inserted through Criminal
Amendment Act 2008 is to be used.
• 41A Notice of Appearance.
• When a complaint under 498a is filed upon the
satisfaction of the police officer he can issue notice of
appearance under section 41A CrPC. If a person
receives the notice of appearance it is his duty to follow
and appear before the police station or court as
mentioned in the notice. It should be issued in the cases
which is punishable with 7 years or up to 7 years of
imprisonment with or without fine. If a police officer
thinks to issue notice of appearance he should issue the
same within 2 weeks from the date the complaint was
registered.