What is Bail?
“Bail” refers to the conditional release of a person from legal custody while the trial or investigation is ongoing. The release generally requires the person to appear in court when called upon. Other conditions can be imposed by the officer or the court while granting bail, based on the execution of a bond or a bail bond by that person.
What is a Bond or Bail Bond?
- Bond: A personal promise by the accused to appear in court without a surety.
- Bail Bond: A guarantee provided by a third party (surety) that the accused will appear in court when required. The surety assumes financial risk in case of non-compliance.
“Bail is the rule and jail is the exception,” – Satender Kumar Antil vs. Central Bureau of Investigation
Rights of a Person When Arrested
- You must be informed of the reasons for your arrest.
- You have a right to see the warrant if arrested under one.
- You have the right to consult a lawyer of your choice.
- You must be produced before the nearest Magistrate within 24 hours.
- You must be told whether you are entitled to be released on bail.
Classification of Offences: Bailable and Non-Bailable
Under the Bharatiya Nyaya Sanhita, offenses are classified as either bailable or non-bailable.
Bailable Offences
These are less serious offenses where bail is granted as a matter of right. Upon furnishing the required bond or surety, the accused is entitled to be released. Examples include:
- Causing simple hurt
- Public nuisance
- Wrongful restraint
Non-Bailable Offences
These involve more serious crimes such as:
- Murder
- Rape
- Kidnapping
- Offenses against the State
Bail is not a right in such cases and is granted at the court’s discretion after considering various factors.
Bail as Defined Under the Law
Section 2(b), (c), (d), and (e) of the Bharatiya Nagrik Suraksha Sanhita define the terms:
- (b) Bail: Release of a person accused or suspected of an offense upon conditions imposed by an officer or court on execution of a bond or bail bond.
- (c) Bailable offense: An offense listed as bailable in the First Schedule or made bailable under current law. Non-bailable offense means any other offense.
- (d) Bail bond: An undertaking for release with surety.
- (e) Bond: A personal bond or undertaking for release without surety.
Types of Bail
The Bharatiya Nagrik Suraksha Sanhita, 2023, recognizes four forms of bail. These are provided under various sections:
Regular Bail
Granted after arrest, while the accused is in police or judicial custody. It affirms the principle of “innocent until proven guilty.”
Anticipatory Bail
A protective remedy for a person fearing arrest in a non-bailable offense. The person can approach the High Court or Sessions Court before arrest to seek bail.
Interim Bail
Temporary bail granted for a limited period while the court decides on a regular or anticipatory bail application.
Statutory Bail
If the investigating agency fails to complete the investigation within the prescribed time, the accused has the right to statutory bail. Sections 187 and 480 of the BNSS govern this.
How to Get Bail from a Police Station?
Police can grant bail in bailable offenses before the accused is produced before a magistrate. The process typically includes:
- Request for Bail: The accused or their lawyer applies for bail.
- Furnish a Bond: A personal bond or surety may be required.
- Police Verification: The police may verify the surety’s credentials.
- Release: The accused is released if all requirements are met.
For non-bailable offenses, only a court can grant bail. The police must produce the arrested person before a magistrate within 24 hours. Failure to do so amounts to illegal detention, which can be challenged through a writ petition in court.
When Can Bail Be Denied?
There are certain cases where the officer or the court has the jurisdiction to reject the bail application. The cases where the bail of the accused can threaten the witness, the public, or the nation’s security could be rejected at the court’s discretion.
Seriousness of the Offence
A bail application can be denied when the offense is of a grave nature, like murder, rape, terrorism, etc. The rationale behind such is that such crimes are of grave societal impact and deal with public safety.
Likelihood of Tampering with Evidence
In cases where the court is in the rational belief that the release of the accused may influence or tamper with evidence, the bail is denied to ensure fairness in the trial.
Risk of Absconding
Bail could be rejected when there is a risk of abscondment of the accused on release, i.e., the accused could flee to avoid the trial proceedings. In such cases, the financial status, political influence, and previous conduct of the accused are taken into consideration.
Repeat Offender
An accused with a history of convictions or any other ongoing trial may not be able to get bail, as such a history raises concerns about public safety.
Threat to National Security or Public Order
Cases where the safety of the public could be at risk or there could be concerns about the national security of the release of the accused on bail often lead to the rejection of the bail applications.
Can You Leave the City or Country After Getting Bail?
In most cases, the court imposes conditions while granting bail. One common condition is that the accused cannot leave the city, state, or country without permission, as the common ground for the bail is that the accused has to be produced before the court whenever asked to. Violating bail conditions can lead to cancellation of bail and immediate arrest.
Conclusion
Bail is a vital legal safeguard that upholds the fundamental right to personal liberty while ensuring that the administration of justice remains uncompromised. The Indian legal framework, through provisions under the Bharatiya Nagrik Suraksha Sanhita, 2023, carefully balances the rights of the accused with the interests of society by classifying offenses, setting procedures, and granting discretion to judicial authorities.
Understanding the distinctions between bailable and non-bailable offenses, the different types of bail, and the circumstances under which bail can be granted or denied is essential for both legal professionals and the general public. While courts consistently affirm that bail should be the norm and jail the exception, practical considerations like the seriousness of the offense, the risk of absconding, and public safety remain paramount in judicial decision-making.
As India continues to reform its criminal justice processes, it is imperative that the bail system remains accessible, fair, and aligned with constitutional guarantees. An informed understanding of these legal provisions ensures that individuals can effectively safeguard their rights while contributing to a just and orderly society.
