Bail provisions in India: Is getting bail easy?

When there is a criminal trial, one thing that always comes without fail is Bail and its procedures. Now I have practiced in Criminal Court for 2 years and so I understand to some extent what is bail and how the procedure takes place. But there has been always this misconception about releasing a person accused of bail within society. There is a myth that if a person released on bail by the court of law, it means the court thinks that a person is not guilty of a crime and he is released much to the dismay of victim. But let me clear it that this is not at all true. Court grants bail so that person accused can normalize his/her life and at the same time, bail is given to enforce the attendance of person before court when trial commences. There is no way mentioned that the court thinks that a person is not guilty. Our law system works simple rule that any person brought before a court for a crime he is accused of is presumed to be innocent until proven guilty.

The word “Bail” and it’s origin:

The word “Bail” originated from the French word “Bailer” which means “to give or to deliver”. Bail is what we say as the provisional release of the accused pending trial. He is not released permanently but only till court pronounces its judgement. Bail is regarded as security to secure the co-operation of the accused while the trial is going on.

In India, Bail provisions are dealt with under Section 436 to 439 of the Code of Criminal Procedure (Cr.P.C). If we took the liberty to bifurcate the concept of bail into types, there are chiefly three main types of Bail in India:

1. Interim Bail.

2. Regular Bail:

a) Bail in the bailable offence.

b) Bail in the non-bailable offence.

3. Anticipatory Bail.

Interim Bail:

This type of bail is rarely used in India. It refers to releasing the accused person on bail pending the final hearing on regular bail or anticipatory bail application filed by the accused. In most cases, an application for interim bail is filed along with anticipatory bail as the anticipatory bail application might take time to reach the final order stage and in the meantime there will be a chance that the applicant might be arrested. So to avoid the arrest while anticipatory bail application is heard, interim bail might be granted to the accused.

Regular Bail:

This is regarded as a more common type of bail application. It is granted to a person who is arrested or already in police custody. These types of bail are dealt with under Section 436 and 437 of the Code of Criminal Procedure. It is sub-divided into three types:

a) Bail in Bailable offence: Bail in bailable offence is dealt with Section 436 of Cr.P.C. Section 2(a) of Cr.P.C defines bailable offences as the offence that has been shown in the First Schedule as bailable or which is made bailable by any other law for the time being in force. This means person who is arrested for offence which is bailable according to Cr.P.C has a right to be released on bail. It is the duty of the police to inform that he is entitled to be released on bail after giving surety. In such cases, even police stations are empowered to grant bail to the accused.

Supreme Court in the case of Rasik Lal v Kishore (2009) 4 SCC 446, held that in case a person is arrested for any bailable offence, his right to claim bail is absolute and indefeasible and if the person accused is prepared, the court or the police as the case may be will be bound to release him on bail.

a) Bail in non-Bailable offence: Now the question might pop up in your minds, what about Bail in the non-bailable offence. The answer is quite clear. Even though a person is arrested for the non-bailable offence, he can still be granted bail by the court. But in these cases, it is in the discretionary power of the court to grant bail or not and the court has to be convinced. Bail in non-bailable offence is dealt under Section 437 of Cr.P.C. In such types of cases, police don’t have the authority to release the person on bail. Bail in such cases can only be given by court alone.

There are other circumstances as well in which bail can be granted to a person accused of non-bailable offence. They are:

• If the person accused is a woman or child then bail can be granted.

• If a person accused is gravely sick and requires treatment which is not possible in Jail.

• If there has been a delay in filing in FIR by the police which is unjust to the accused person

• If the trial of a person accused of non-bailable offence before a magistrate is not concluded within 60 days and accused is still in the Jail for that period of 60 days, then by default the person must be released on bail.

Anticipatory Bail:

The third type of bail in India and the second most common is Anticipatory Bail. In case a person is of the apprehension that he might be arrested on the accusation of a non-bailable offence, he can apply to the High Court or Court of Session for bail under Section 438 of CrPC. This makes it clear that Application for Anticipatory Bail can only be applied before Sessions Court or High Court and not any other court. The court has the discretion to either grant bail or rejects it and the decision of the court will be final in such cases. However, Anticipatory Bail cannot be granted like that. There are certain conditions that are needed to be fulfilled if the accused is to be released on Anticipatory bail. They are:

• Make himself available for interrogation by Police Officer as and when required.

• Not make any inducement, threat or promise to any person so as to deter him from disclosing any material facts to the Court or any police officer.

• Not leave India without prior permission of the Court.

In such cases, Anticipatory Bail can be granted.

Cancellation of Bail:

If the session’s court or high court feels that person should not be released on bail, they have power to cancel the bail granted and direct that accused person to be taken into custody.

This was all about Bail and its application. Do let us know you opinion. Also if you have any suggestions or you have blog to be submitted. You can direct message us on our social media sites or connect to us through our website. Till then stay safe, stay healthy. OM SHANTI