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Research Paper On Provisions For Bail Under Crpc

Bail refers to the release of the person from legal custody. Every criminal offense is an offense against the state, thus whether bail is granted or rejected has a significant impact on society. In deciding whether to grant or refuse bail, the sanctity of human liberty and the interests of society must be precisely balanced."

The principle of bail is that it functions as security filed by the accused individual, allowing him to be freed on a temporary basis but requiring him to appear in court whenever necessary by the court. While the accused person's trial is still ongoing, the bail procedure takes place. In most cases, an individual requests this option in order to be freed from police custody. Bail is a legally binding procedure.

This article mentions the several provisions of bail including bailable offence and non-bailable offences, and several kinds of bail i.e., interim, regular, statutory, and anticipatory bail. It further mentions the authority of the lower courts including the magistrate, court of session and high court to grant the bail while taking into account the necessary conditions and requirements and if necessary to cancel the bail considering the essential elements.

The Indian constitution guarantees every person regardless of their citizenship, the protection of life and personal liberty under Article 21[1]. It assures the fundamental right to live with dignity and personal liberty. Therefore, when one gets arrested by the law enforcement authority, then people have the right to ask for bail, however, depending on the nature of the offense it is at the discretion of the court whether to grant bail or decline bail application.

The bail provisions are based on the legal principle 'presumption of innocence' which means that the person accused of any crime is considered innocent until proven guilty. The given fundamental principle is mentioned under Article 11 of the Universal Declaration of Human Rights.

Bail is not defined in the CrPc but the Bail can be seen as the process of procuring the release of an accused who is charged with offenses, ensuring and considering his presence in the court of law when he/she is called or during the proceedings and compelling him to remain within the jurisdiction of the court. According to the Black's Law Dictionary, bail is the security required by the court to release the prisoner who shall appear in the future time in the court of law.

Legal stand of Bail
Bail is not defined under the Criminal Procedure Code, 1973. Section 2(a)[2] of CrPc defines the terms 'Bailable offense' and 'non-bailable offence'. Bail provisions and bail bonds are specified under sections 436-450 of CrPc.

Categories of Bail
In order to obtain bail, offences are classified into two categories as:
  • Bailable offences
  • Non-bailable offences

Bailable offences:
Section 2(a) of Crpc defines bailable offences as the offenses which are classified as bailable in the First Schedule of the Crpc or classified as bailable under any other law. Bail is a matter of right if a person is accused of bailable offences such as forgery, theft, stalking, misappropriation of property, etc. When accused has furnished the bail, the police officer or any other authority has no right to reject the bail in such cases. Section 436 provides that when a person accused of bailable offences is arrested or detained by any police officer without a warrant and while in the custody of the police or brought before the court at any stage of the proceeding has the right to be released on bail.

The hon'ble apex court in the case of Rasiklal v. Kishore Khanchand Wadhwani[3], 2009, held that Section 436 of Crpc grants the right to claim bail in bailable offences is absolute and indefeasible right.

Dharmu Naik v. Rabindranath Acharya, 1978, the court held that the refusal to issue bail in violation of Section 436[4] of the code renders the detention unlawful, and the police officer responsible for the detention may be charged with wrongful imprisonment under Section 342[5] IPC.

Non-Bailable offenses
Section 2(a) of Crpc mentions non-bailable offences as any offences other than bailable offenses are known as non-bailable offences. Any person who is accused of non-bailable offenses cannot claim bail as a matter of right. The person accused of non-bailable offenses can secure bail if he doesn't fall under the given conditions:
  • There are reasonable reasons to assume he committed an offense punishable by death or life in prison.
  • That the accused committed a cognizable offence and had previously been convicted of an offence punishable by death, life imprisonment, or imprisonment for seven years or more, or that the accused had been convicted of a cognizable and non-bailable offence on two or more times.
Furthermore, there are a few exceptions where the law gives special consideration to conditions such as the accused being under the age of sixteen, a woman, a sick person, and so on (provided in section 437(1)[6] of Crpc).

Kinds of Bail:

  1. Regular Bail:

    Regular bail is a legal procedure that allows a judge to order the release of someone detained on suspicion of committing an offense, often on the condition that the individual does not flee or otherwise obstruct the administration of justice. These conditions may need the execution of a "personal bond" or the execution of a bond with sureties by a court. When a person is held on suspicion of committing a bailable offense, bail becomes a right, and the individual may be freed using the procedures provided in Section 436 CrPC. When a person is arrested on suspicion of a non-bailable offense, bail is discretionary, and the accused may be released only if a strong case is established.

    Section 437 governs bail petitions filed in magistrates' courts, whereas Section 439[7] governs bail applications filed in Session or High Court courts. According to Section 437 of the CrPC, the granting or rejection of ordinary bail is an exercise of judicial discretion regulated mostly by norms and a few bright-line laws.

    Kanwar Singh Meena v. the state of Rajasthan and others[8], the court held that, section 439 of the code gives the court of session and high court additional jurisdiction in granting and canceling bail, courts also need to consider the following factors:
    • character, evidence, position, and standing of the accused
    • nature of offence or its seriousness
    • possibility of the accused evading justice
    • among other reasons, the danger of tampering with evidence and influencing or manipulating witnesses
    The Court further stated that each criminal case presents a unique factual context that influences the court's bail decision.
  2. Interim Bail:

    Interim bail is a temporary bail given by the court while any case is pending or until the court hears an anticipatory bail or regular bail application. Section 438[9] relates to the court's ability to grant an interim order during a pending anticipatory bail hearing.

    It is granted in accordance with the circumstances of the case. The interim bail period can be extended, but if the accused person fails to pay the court for confirmation and/or continuation of the interim bail, his freedom will be forfeited, and he will be imprisoned or a warrant issued against him.

    This differs from anticipatory bail, which is granted while the bail application is pending. Interim bail is only available to accused persons who think they have been wrongfully accused of a crime and want to get out of jail or on bail as soon as possible. Although there is no distinct Section in the CrPC for interim bail, the same limits apply.

    When a person applies standard or regular bail, the court normally schedules the application after a few days to evaluate the case diary, which must be obtained from the police authorities, and the applicant must remain in jail in the interim or subsequent period. Even if the applicant is later released on bail, his reputation in society may suffer irreparably. A person's reputation is a valuable asset and a component of his constitutional right under Article 21.

    As a result, it is possible to conclude that the ability to issue bail includes the court's inherent jurisdiction to provide temporary release to a person pending the final decision of the bail application. Although the court has the ability to issue interim bail, it is an option.

    Essentials of Interim bail:
    • It is offered only temporarily or for a short period.
    • It is granted while a court application for anticipatory or normal bail is pending.
    • When the offender's bail term ends, he or she will be arrested without a warrant.
    • There is no standardized process for canceling Interim Bail.

    Section 438 authorizes the court to issue an interim order in the context of a pending anticipatory bail hearing. Although interim bail is not mentioned in the CrPC, the courts have frequently used their judgements to determine the meaning and scope of interim bail.

    In the case of Sukhwant Singh and ors. And State of Punjab[10], interim bail was described as a mechanism to safeguard the accused's reputation. In this decision, the Supreme Court determined that the courts' jurisdiction to award interim relief is inherent in their power to grant bail. The concept of interim bail is crucial because an accused may face arrest even before his bail verdict is delivered. Interim bail is therefore given when the court believes it is essential to protect the accused from being unfairly detained or imprisoned.
  3. Statutory Bail:

    Statutory bail is found in Section 167(2)(a)[11] CrPC. It states that the Magistrate may allow the accused person to be detained other than in police custody for up to 15 days, but no more than 90 days if the inquiry relates to an offense punishable by death, life imprisonment, or more than ten years in prison, and 60 days if the inquiry is about anything else. If the inquiry is not completed within 90 or 60 days, the accused should be granted bail. Nonetheless, the court may impose such limitations on bail as it considers necessary.

    This is often referred to as obligatory bail or default bail. This is a bail right that emerges when the police fail to complete an investigation involving a person in judicial custody within a particular time limit. Default bail is a legal right regardless of the nature of the offense. The time restriction for filing the charge sheet begins on the day the accused is initially apprehended. Section 173[12] of the Criminal Procedure Code requires a police officer to file a report after conducting an adequate investigation into an offense. This report is commonly referred to as the "Charge Sheet" in common parlance.

    Bikramjit Singh v. State of Punjab[13], The Supreme Court ruled that an accused has an intrinsic right to "default bail" if he applies after the time limit for investigating an offense has passed but before a charge sheet is filed. The right to default bail under Section 167(2) of the CrPC is not only a statutory right; it is also a component of the judicial system established by Article 21. In general, the right to bail on the failure of the investigating agency is viewed as an "unalienable right," however it must be used at the appropriate time.
  4. Anticipatory Bail:

    under Indian criminal law, anticipatory bail is provided for under Section 438 of the Criminal Procedure Code of 1973. In its 41st Report, the Law Commission of India emphasized the need to include a provision in the Code of Criminal Procedure that allows the High Court and Court of Sessions to grant "anticipatory bail."

    This Section allows a person to request bail before being arrested on suspicion of a non-bailable offense. The main reason for establishing this Section was to guarantee that no one was imprisoned in any way until and until they were proven guilty.

    If a person has reason to believe that he may be arrested on suspicion of committing a non-bailable offence, he may apply to the High Court or the Court of Session under this Section for a direction that he be released on bail in the event of such an arrest, and the court shall grant him anticipatory bail.

    The court takes the considerations into account while granting anticipatory bail, section 438(1A) addresses such elements and considerations for granting anticipatory bail:
    • nature and seriousness of the charge or case
    • The applicant's history, notably whether he has ever been imprisoned following a court conviction for any cognizable offense.
    • The applicant's capacity to evade prosecution.
    • If the charge is established with the intention of injuring or humiliating the applicant by arresting him, either reject the application immediately or issue an interim order providing anticipatory bail.
    Rukmani Mahato v. State of Jharkhand[14], the apex court instructed Trial Courts not to grant regular bail to an accused if he or she has already secured interim anticipatory bail from a superior court and the case is still pending before the higher court.

Cancellation of Bail

Section 437(5) of the code, gives the power to cancel the bail to the lower courts, including magistrates, whereas high court and court of session have the authority to cancel the bail under section 439(2) of the code.

According to the CrPC, the accused, public prosecutor, complainant, or any other aggrieved party may use the right to terminate or rescind bail. The High Court, Court of Session, and several lower courts, including Magistrates, also have the ability to rescind previously granted bail. Other than the High Court and the Court of Session, courts can only cancel bail granted by them. The cancellation powers of the High Court and Court of Session are broader, and they can even rescind bail given by lesser courts.

In the case of Rubina Zahir Ansari v. Sharif Altaf Furniturewala[15], the Supreme Court held that Section 439(2)[16] of the CrPC states that the jurisdiction of the Court of Session and the High Court is concurrent. The injured party may apply to the Court of Session or the High Court to have the magistrate's bail revoked. Also, it would not be a violation of judicial decorum if such a petition was presented to the Supreme Court rather than the Court of Session.

If bail is canceled due to a subsequent occurrence or a fact unknown to the prosecution and the court when bail was granted, the petition under Section 439(2) or Section 437(5) may be filed in the same court.

Mahipal v. Rajesh Kumar and another[17], the Supreme Court held that if the judgment at issue is completely unreasonable and unjustifiable, the court may exercise its jurisdiction under Section 439(2) of the CrPC to revoke the respondent's bail. Aside from these, bail cancellation may be utilized in the following situations:
  • On the merits of a case, particularly if the order granting bail was irrational, made without adequate consideration, or in violation of any substantive or procedural legislation;
  • On the basis of misuse of liberty following the issuing of bail or other supervisory conditions.

The right to life and personal liberty is just too vital to be overlooked. The Indian judicial and legal systems have regularly emphasized the importance of such inalienable human rights, particularly in the context of bail approval and rejection. However, courts must keep in mind that dishonest litigants and persons must be dealt with harshly when they use and abuse judicial instruments. The law undoubtedly aids and supports the righteous, but it cannot be used to facilitate or carry out a false strategy.

There is also a strong need for comprehensive bail reform that takes into consideration the socioeconomic position of the majority of our population. When granting bail, the court must be sympathetic to the accused's socioeconomic condition. A detailed investigation may be done to determine whether the accused has community ties that would prevent him from fleeing the courtroom.

  1. Indian Consti. Article 21
  2. The Code of Criminal Procedure, 1973, Section 2(a), No. 2, Act of Parliament, 1973 (India)
  3. Rasiklal v. Kishore Khanchand Wadhwani AIR 2009 1341
  4. The Code of Criminal Procedure, 1973, Section 436, No. 2, Act of Parliament, 1973 (India)
  5. Indian Penal Code, 1860, Section 352, No. 45, Act of Parliament, (India)
  6. The Code of Criminal Procedure, 1973, Section 437(1), No. 2, Act of Parliament, 1973 (India)
  7. The Code of Criminal Procedure, 1973, Section 439, No. 2, Act of Parliament, 1973 (India)
  8. Kanwar Singh Meena v. the state of Rajasthan and others (2012) 599 SC
  9. The Code of Criminal Procedure, 1973, Section 438, No. 2, Act of Parliament, 1973 (India)
  10. Sukhwant Singh and ors. And State of Punjab, 1995 3 SC 367
  11. The Code of Criminal Procedure, 1973, Section 167 (2)(a), No. 2, Act of Parliament, 1973 (India)
  12. The Code of Criminal Procedure, 1973, Section 173, No. 2, Act of Parliament, 1973 (India)
  13. Bikramjit Singh v. State of Punjab (2020) SC 824
  14. Rukmani Mahato v. The State of Jharkhand, (2017) 15 SCC 574
  15. Rubina Zahir Ansari v. Sharif Altaf Furniturewala (1978) 1 SCC 1 18
  16. The Code of Criminal Procedure, 1973, Section 439(2), No. 2, Act of Parliament, 1973 (India)
  17. Mahipal v. rjesh Kumar and ors. (2019) 1205 SC

Written By: Pooja Yadav
(Provision for Bail under CrPc), B.A. LLB(Hons.), 21 Amity University, Uttar Pradesh

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