Freedom is one of the quintessential human rights which is necessary for human existence of an individual this freedom is never an absolute right, being subject to certain reasonable limitations. One of these restrictions is the commission of crime which exposes a person to confinement, depriving him freedom. It is not necessary that an accused person is always the guilty one, so the criminal justice system ensures that the rights of an accused person are not curtailed only on the mere allegation of commission of crime.

Bail is a remedy provided to such accused persons to not get treated like a criminal before being declared as such. The word 'bail' is derived from a French word "bailer", meaning "to give" or "to deliver". Bail, in legal terms, temporary release of a person accused of a crime upon submission of certain monetary security, to ensure his presence to the required legal authority.

Monetary value of such security is called bail or bail bond. It is a fundamental aspect of any kind of criminal justice system across the globe which ensures the right to fair trial of an accused person. It is sometimes a conflict with between the right to personal freedom of a person and the public interest.

In Indian Constitution, article 21 particularly deals with the provision of right to life and personal liberty to every person. This fundamental right, in its essence, provides the right to live with dignity, implicitly involves the practice of bail to accused person in criminal justice system. Bail is the device that blends the right to freedom of accused with the public interest of ensuring the appearance of accused and compliance with the ordinary judicial process. Bail is a kind of 'judicial release' which enables an accused to be released from custody subject to certain imposed limitations. Bail is an integral element of the Indian criminal justice system. It ensures to maintain the delicate balance between the rights of the individuals accused of a crime and requirements of the judicial process.

It permits the accused person to remain outside the custody during the time of pendency of the trial. Integral part of process of bail is the bail bond which is mainly a monetary guarantee provided to the satisfaction of the court to ensure that the person providing such assurance duly complies with the conditions of the bail and also promises to make appearance in the court whenever required. Additionally, there is also presence of surety in certain cases, who is a person providing personal guarantee to the court to ensure the compliance of conditions by the accused person.

Concept Of Bail Under Indian Law:

Under the Indian Criminal Law, the concept of bail is dealt under the provisions of Code of Criminal Procedure (CrPC), 1973. Basically, the criminal offences in Indian legal system are broadly differentiated as bailable offences and non-bailable offences. Although, the term 'bail' is not explicitly defined in CrPC but it is dealt by the concept of the bailable offence and non-bailable offences, which are explicitly defined under Section 2(a). Chapter XXXIII (Section 436 to 450) govern the procedural concept of technicalities relating to bail under the Act.

Section 436 provides the right to bail of a person accused of a bailable offence. This right is availed at any stage of legal proceedings. Upon arrest, the bail could be granted by the police officer making such arrest or the court before which such person is produced. Here bail will ordinarily be granted against furnishing of surety by the arrested person. If the police officer or court knows that the arrested person, being indignant cannot furnish sureties, then he can be released on bail upon execution of bond without securities.

It has been provided that in case a person fails to give bail within one week of his arrest, he may be considered as an indignant person who could be discharged even without sureties. It is also ensured by the police officer or the court that the accused should not be prima facie guilty and such case needs further inquiry for final determination. This right to bail can be revoked if such person has not complied with the conditions of the bail bond on the previous occasion in the same case.

Section 437 deals with bail in the cases of non-bailable offences. In such cases, bail is only discretion of the court rather a right. This provision empowers courts, excluding High court and Court of Sessions, to grant bail even in cases where person is arrested without a warrant. It is also provided that no bail can be granted if such person is guilty of offence punishable with death or life imprisonment.

The provision of bail also gets cancelled in case of habitual offender who has previously been convicted for an offence punishable with death or 7yrs or more imprisonment or convicted 2 or more times for offence punishable with imprisonment of 3 yrs or more. Bail can easily be granted if accused is a woman or child or infirm or where there is insufficiency in the matter alleged.

In cases of offences punishable with imprisonment for 7yrs or more then before deciding the granting of bail, the Public Prosecuted is provided an opportunity to present his cases for refusing the bail of such person. Even if the bail is provided in such case, various conditions may be imposed, like attendance as per bail bond, non indulgence in any other offence or not interacting with the person aware of the circumstances of his case (possible witnesses).

Section 439 deals with special bail powers of High Court or Court of Session. These courts can provide bail to accused person whose bail application has been rejected by the trial court even in the case of non bailable offences. These courts are empowered to also check conditions imposed by trial courts in granting bail and can also give order for arrest of persons released on bail.

Section 436A is a reformatory provision which relates to the under trial prisoners. It was inserted in 2005 for ensuring the rights of under trial prisoners. It provides that if the accused person has been detained for half of the maximum punishment of his alleged offence, then he may be released on bail. This provision does not apply to persons accused of offence punishable with death.

Section 438 stipulates bail procedure before the arrest. It is a special kind of bail which is availed upon satisfying the court regarding the apprehension of applicant being alleged with commission of non bailable offence in the future, which could cause him irreplaceable harm. It can only be granted by a High Court or Court of Sessions. Person who has been granted anticipatory bail cannot be arrested by the police. This concept is mainly based on the principles of equity which enables the court to prevent the harm which could be inflicted upon false charges. The court can impose conditions related to compliance with investigation procedure upon granting of such bail.

Section 441 deals with the bond and sureties. Before the release on bail, the accused has to execute bond for determined sum of money and also ensure that one or more sureties provides guarantee on his behalf. While Sec 443 deals with power of court to order for sufficient bail, when there are not sufficient sureties on behalf of accused, Section 444 deals with provisions related to discharge or release of sureties from bond. Section 446 deals with the procedure to be followed in case where bond has been forfeited. Section 448 is related to bond from minor while Section 449 provides the appeal procedure from orders made under Sec 446.

In the case of Hussainaira Khatoon v State of Bihar, the Apex Court addressed the problem of delayed bail and violation of Article 21 of Indian Constitution. It was held that bail is a right so every accused person has the right to apply for a bail. This right is also subject to certain exceptions like repeated offenders or accused who could intimidate witnesses upon release.

Kinds Of Bail:

1. Regular Bail: It is an ordinary legal procedure by which a court can order for the temporary release of a person who has been arrested on the suspicion of having committed an offence subject to various limitations imposed on appearance and compliance with the legal procedure to ensure ends of justice. This type of bail may be with or without sureties which depends on kind of offence and discretion of court.
   
   It is fundamental kind of bail which is provided to secure the presence of accused at the trial. In the case of a bailable offence, accused has the right to get a bail under Section 436 of CrPC. It is the statutory duty on the part of the police officer and court to grant the bail upon request and fulfillment of the security amount. Additionally, in case of under trial prisoners, it is mandatory to grant the bail upon execution of bond, when the accused has already served the half duration of maximum punishment of the offence which he is alleged to commit.
   
   In the case of non-bailable offence (serious kind of offence), the concept of bail is not a right but a discretion. Bail in non-bailable offences can only be granted if the court deems it necessary for the purpose of justice. However, it can be definitely availed in the cases where the accused is a person under 18 years of age or a women or an ill person. Section 437 and 439 of CrPC deals with the provisions of bail in non bailable cases.
   
   Particularly, Section 437 governs the bail in court of magistrate while Section 439 is applicable on bail applications made in High Court or Court of Sessions. With the grant of a bail, the court is empowered to impose conditions like timely reporting at police station, prohibition on intra-country travel etc.
   
   
2. Anticipatory Bail:
   It is a special kind of bail which is based on principle of anticipation, different from the regular bail. It is a preventive remedy dealt under Section 438 of CrPC which provides relief to any person anticipating his arrest under accusation of bailable offence. An individual who has secured such bail cannot be arrested by the police. The application for this kind of bail can be filed only in the High Courts or Court of Sessions having sufficient jurisdiction.
   
   For securing such bail, it has to be proved to the satisfaction of the court that such applicant may be accused in a false which would cause him irreplaceable harm. In the case of Sushila Agarwal vs State (NCT of Delhi), it was held that anticipatory bail is not limited to a particular time period as it remains effective until the determination of the case. This type of bail cannot be granted to a offender habitually accused of crimes. Additionally, the grant of this bail restricts the applicant from leaving the country without the prior permission from the court.
   
   
3. Interim Bail:
   The word 'Interim' literally means something which is not permanent or final. It is a temporary form of bail which is mainly granted during the pendency of application seeking regular or anticipatory bail. It is brief remedy provided upon the complete discretion of the court until the determination of bail application. It is conditional in nature and subject to certain limitations which if not fulfilled until the expiry of the term of the bail could expose him to the custody.
   
   This bail can be revoked in cases where applicant violates certain conditions or when it is necessary for purpose of justice. It is totally different from the regular bail in the terms of duration, conditions and purpose. The term interim bail is not specifically defined in the CrPC but it is implicitly understood in the context of Section 437. The judiciary has widely interpretated the bail provisions to ensure the provision of interim bail which could be granted in special circumstances. Before the grant of interim bail, the court considers various special factors; one of them is medical condition of applicant.
   
   When the accused suffers from serious illness or there is immediate need for treatment then it can be granted for protection of his health. Others factors include humanitarian grounds such as being a sole earning source in the family or economic difficulties, delays in the investigation process, etc. In the recent case of Arvind Kejriwal v. Directorate of Enforcement (2024), the court provided interim bail to the ex-Delhi CM to take part in campaign for his party in Lok Sabha election as it was necessary for ensuring his political rights.
   
   
4. Default Bail:
   It is a very special kind of bail which could be provided only in one particular scenario, i.e. failure to produce chargesheet or complaint within the stipulated time. As per Section 167 of CrPC, on production of arrested person before the magistrate, it can grant police custody of 15 days subject to extension of another 15 days. Also, maximum detention period for offences punishable with death, life imprisonment or minimum 10 year imprisonment, is 90days and for other offences, it is 60 days. If the police fail to file chargesheet or complaint within such period of 60 or 90 days then the accused is entitled to default bail. One special feature of this bail is that it is an absolute right not a mere discretion of the court.
   
   
5. Medical Bail:
   This kind of bail is granted solely on the basis of health and well being of the accused person. In cases where the health condition of such person requires immediate medical treatment then medical bail can be granted. Courts usually do not go deep into the determination of merits of these cases if medical emergency is involved.
   

Conclusion
Bail is a significant tool to maintain check and balance in the criminal justice system to ensure that the accused person is not punished until proven guilty by the court. Bail is one of the most crucial factors ensuring the rights of the accused person while is integral for upholding the concept of right to life and liberty under the Indian Constitution.

The provision of bail directly addresses the conflict between the social security and individual freedom. It tries to make a balance between the theory of shielding the offender from the society and theory of innocent presumption of accused until proven guilty. Although, granting or refusing of bail depends on various factors, this concept of bail provides an opportunity for the accused to present his case before the court, which is necessary as per the principles of natural justice.

The system of bail and bond in Indian Jurisprudence is designed to ensure the balance between the right to individual liberty and collective public interest. Still there are various grey areas surrounding the question regarding the monetary aspect of bail which denies people belonging to marginalized section of the society, their right to personal freedom. This issue has to be adequately resolved by the Indian criminal justice system to ensure equality and justice. Overall, bail plays an important role in upholding the principles of human dignity, fairness and liberty in the criminal justice system.