The concept of bail is of utter importance in the criminal justice system. As we know, the concept of bail is the release of a person charged with certain offenses on the condition that he will be present for the trial as and when the court requires. The concept of bail arises when there is an arrest by the police of an accused person who has committed a particular crime. Bail is released from prison or custody of the police by furnishing a surety. This surety is called a bail bond, which is usually in the form of monetary value. It may be papers of the title of the property, fixed deposits, etc.
Origin, History & Concept of Bail
The term “bail” is derived from the French word “bailer,” which means “to deliver” or “to give,” though some scholars believe it is derived from the Latin term “bajulare,” which means “to bear the burden. “General sense, we refer to bail as the release of a person (accused) from custody, either by personal bond or sureties.
The history of bail can be traced back to 399 BC. It is believed that Plato tried to release Socrates by creating a bond for his release. In the 17th century, an Italian traveler named Manucci was confined to his freedom and was imprisoned for false charges. He was granted bail by the Ruler of Punjab, but the Kotwal, only when he furnished surety for his release.
Later on, during the Mughal Rule, the legal system in India was recorded as having the concept of bail by furnishing surety for the release of an arrested person. There is also mention that under the Mughal rule or system, if the interim release was only possible in a particular way and if exclusion or exemption was delayed by the judge, then the aggrieved party could ask for relief or compensation from the judge himself for the loss he had gone through. During the British Raj, Indian criminal courts used very well-defined forms of bail for the release of people who were held in custody. These well-defined terms are known as Zamanat and Muchalka. The reflection of these systems can be seen in the present criminal procedure code of 1973.
Bail under Code of Criminal Procedure, 1973
The term “bail” is not defined in the Code of Criminal Procedure (Cr. P. C), but the term “bailable” is defined in Sec. 2(a) of the Code of Criminal Procedure. Bailable offenses are those that are mentioned in the First Schedule or which are made bailable by other laws in force. Bail and bonds are covered under Chapter XXXIII, from section 436 to section 450 of the Cr. P. C.
What is a bailable and non-bailable offense?
Bailable offences are those crimes that are not serious in nature. In a bailable offence, the arrested person gets bail or is released upon making a bail deposition with the police. The police have the power to allow bail in such matters. The accused is released on bail after producing a bail bond with or without furnishing sureties.
Examples of Bailable Offences:
- Troubling gatherings at religious places,
- Selling food and drinks that are harmful for human consumption
- Giving false and fabricated facts to divert the judicial proceedings,
- Interfering with or obstructing a public servant’s performance of his official duties
- Giving or taking bribes during the election
- Rioting or carrying weapons.
- Public servants who do not obey the directions given by the law with the intention of causing injury to the people
Non-bailable offences are very serious and heinous crimes where bail can only be granted by the court. The accused, on being arrested, cannot be released as a matter of right. The application for bail for non-bailable offences has to be filed before the magistrate. The application is placed for hearing before the magistrate. In addition to the accused, the police must be present in court. The magistrate may pass any such orders as he thinks fit.
Examples of non-bailable offenses include murder, rape, grievous hurt with the intention of killing, kidnapping, and dowry death.
Types of Bail
Regular Bail: Regular bail is allowed for a person that has been arrested or is in police custody. Under regular bail, an application is filed under sec. 437 and 439 of Cr.P.C.
Interim bail: Interim bail is granted or given to a person for a very short time. It is granted when intermitted or anticipatory bail is filed before the hearing.
Anticipatory bail: anticipatory bail is often granted by the Sessions Court and the High Court under Section 438 of the Cr.P.C . and is usually filed by a person who is afraid or has a fear that he will be arrested for a non-bailable offence.
The Guidelines by the Honourable Supreme Court
As we know, once the investigation is complete, the Investigating officer files a report of its findings and the investigation is done. In a situation where the police state that there is enough evidence to present the case under S. 170 Cr. P. C., the court has the power to try the case. When the offence is bailable, the accused will furnish a surety stating that he will be present before the court as and when he is required on the next date of the hearing of the trial. Section 170 Cr. P. C creates confusion when there is no arrest of the accused in the entire process of investigation/inquiry.
The requirement of S. 170 is that there should be an arrest of the person accused when the investigation is completed and sent to the court. It is irrelevant to the nature or the period of the custody.
In the case of Siddharth v. State of Uttar Pradesh (Crl.838 2021)
In this case, the accused was arrested on completion of the investigation by the police, stating that they had to present 178 reports to the court. The SC agreed with the interpretation given by the High Court to S.170. It stated that when there is no doubt the suspect will not run away or temper with the witness, there is no reason to arrest the person upon completion of the investigation.
The court used this chance to restate the practices that are adopted by the investigating offices and judicial magistrates on the subject of the arrest.
The Supreme Court has shown disapproval of the unjustified and baseless act of arresting the accused at the time of filing the chargesheet only to give it a formal status while charges are framed. It is also noticed that the same was completely misled and the opposite to Sec.170 of
The first thing the lower courts must do is to issue summons so that there is no unreasonable order of arrest.
The Hon’ble Supreme Court made certain observations and pointed out that it would frame guidelines on granting bail. Annoyed with the habitual behavior of the investigation officers and the judicial magistrate, the accused who was not arrested during the entire process of inquiry and at the same time, who were mutually involved in the investigation based on these two issues or points in the guidelines laid down
The Supreme Court has laid down guidelines on granting bail on filing a chargesheet in the case of Satender Kumar Antil v/s Central Bureau of Investigation & Anr (2021).
In this case, after the filing of the chargesheet, the accused never appeared before the court and filed an anticipatory bail application. The application was rejected by the court and a non-bailable warrant was issued. Unhappy with the rejection of his anticipatory bail application, he filed a Special Leave Appeal petition before the Hon’ble Supreme Court. The Hon’ble Supreme Court asked for an explanation as to why the petitioner was behaving in such a manner that he was avoiding the appearance of the court and filing an anticipatory bail when there was no alarm of his arrest as he had never been arrested in the entire process of investigation. Hence these guidelines by the Supreme Court.
The guidelines are laid down to bridge the gap where the investigation is complete and the chargesheet being filed, but in the entire process, the accused was never even arrested during the investigation. The guidelines are suggested by Mr. S. V. Raju, learned additional solicitor general (representing the respondent) and Mr. Sidharth Luthra, learned senior counsel (representing the petitioner).
The guidelines are laid down so that the main element is kept in the mind of the trial court and HC’s and to follow the required sequence when the chargesheet is filed.
The Hon’ble Supreme Court has categorized the offences as under:
- Crimes that are punishable with imprisonment for 7 years or less do not come under Category B and D.
- Crimes are punishable by death, detention for life, or detention for more than 7 years.
- Special acts which have more strict or rigorous provisions for bail, like NDPS, PMLA, UAPA, Companies Act, etc.
- Economic offenses (counterfeiting of currency, frauds, money laundering, etc.) that are not covered by the special activities are not covered by the
These are the required conditions:
- During the investigation, the accused were not arrested at all.
- The accused appeared before the investigating officer when called upon for an investigation and also cooperated in the entire investigation.
Once the chargesheet is filed or the complaint of cognizance is
- The court issues an ordinary summons in the first instance, which includes appearing through a lawyer.
- When the summons is served and the accused does not appear, a bailable warrant to appear in person will be issued.
- A non-bailable warrant will be issued on failure to appear before the court on a bailable warrant.
- When a request is made on behalf of the accused before the order of non-bailable warrant that he be present physically or in person before the court on the next date of hearing, the non-bailable warrant shall be changed into a bailable warrant or summons and the need for physical appearance won’t be required.
- The bail application will be decided by the court without the accused being in physical custody or by granting him interim bail till the bail application is decided.
B and D categories
When the accused appears in court, his or her bail application will be decided on the merits.
Category C includes the same guidelines as Categories B and D, with the addition of compliance with the bail provisions of the NDPS, Companies Act, and POSCO Act.
The trial court and the High Court have to keep in mind the directions while examining the bail applications. The caution which is pointed out by the learned ASG
- They are accused of not cooperating in the investigation.
- Those accused who have never appeared when called upon by the investigation officer
- The accused that has not replied to the summons of the court when called upon for judicial custody for the completion of the trial.
- Need for improvement
- The trail court, while granting interim bail to the accused, has to consider the behaviour of the accused when the inquiry is going on for which there is no warranted arrest.
The Supreme Court has classified a separate set of crimes known as “economic offences” which are not covered by or in the special act. In the case of Sanjay Chandra v. C.B.I (2012) SCC 40, the Hon’ble Supreme Court has made an observation while deciding whether to grant bail. Two features have to be considered.
- The gravity of the charge
- Strictness in punishment
In my opinion, bail is a very important concept in the criminal justice system. As we have already seen, there are 3 types of bail. For the accused person, bail is the release from prison or custody of the police. The granting of bail depends upon the severity of the offence and the circumstances in which the crime was committed. The guidelines laid down by the Hon’ble Supreme Court are helpful to the trial courts in following a strict sequence once the chargesheet is filed, and also to avoid unnecessary delay in the investigation. The guidelines are not to trouble the accused but to have a free and fair trial.
Categories: Criminal Law