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Bail And Its Processing Under CrPc - A Critical Study

Introduction
Bail being a subject matter of an accused is not defined anywhere in Law. But in layman's language, it can be stated as the temporary release of an accused person awaiting trial, on a condition that a sum of money is lodged to guarantee their appearance in Court with Surety. Under the Code of Criminal Procedure, we have certain provisions that are referred to as bail in one way or another. Section 436 to Section 450 of the Code of Criminal Procedure are the basic sections for granting of bail and bonds in criminal cases.

Apart from all these sections, under Cr.PC, we have some circumstances in which the release of Bail is Authoritative, such as the right to release on bail if the investigation is not completed within the prescribed number of days and so on. Bail is one of the cherished rights, claims, or privileges of an accused person following the concept of every accused person is innocent before he is proved guilty.

Objective And Definition
The main purpose or objective of arrest, detention, and custody of the accused person is primarily to secure his appearance before the court at the time of trial and to ensure that in case he is found guilty he is available to receive the prescribed punishment and penalty under the law. It can be stated that the principal objective of bail is to secure the attendance of the accused during the time of trial and to ensure that he does not flee from Justice and does not tamper with the pieces of evidence.

The word Bail is not defined anywhere in the code of Criminal Procedure, whereas the Code of Criminal Procedure 1898 and 1973 have defined the word bailable offense and non-bailable offense, in Section 4(1)(b)[1] and Section 2(a)[2], The Code of Criminal Procedure 1973, defined bailable offence, as an offence which is shown as bailable in Schedule 1, or which is made bailable by any other law for the time being in force and the non-bailable offence has been defined to mean any other offence.

The Law Lexicon[3] defined:
bail as the security for the appearance of the accused person on which he is released pending trial or investigation

The Black Law's dictionary defined[4]:
bail as to procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.

Reports Of Law Commission Of India

41st Report- Law Commission Of India

In the 41st report of the Law Commission of India[5], law commissions made its recommendations and the recommendations regarding bail were considered and incorporated by Parliament while the creation of Code of Criminal Procedure, 1973 with the purpose of replacing the Code of Criminal Procedure 1898. The Law Commission in its report recapitulates the need to preserve the basic principles regarding bail and suggested some changes in the working aspect of the system.

Law Commission compiled the recommendations regarding bail into certain principles:
  1. bail is a matter of right only if the offense is bailable,
  2. if the offense is non-bailable, bail is a matter of discretion,
  3. bail should not be granted if the offence is punishable with the death penalty or imprisonment for life.
  4. in respect of offenses punishable with death or imprisonment for life, the session's court and the High Court ought to have even a wider discretion in the matter of granting bail[6].
Grating of bail relies on an assumption that persons accused of serious offences with the death penalty or imprisonment for more than 7 years, may again commit serious offenses or tamper with the during his release on bail pieces of evidence. Law Commission in its report stated that in cases where the liberty of the accused was to be abused, the bail can be cancelled [7].

3.2 48th Report- Law Commission Of India

In the 48th Report of Law Commission of India, Para 31, discusses the provisions of the grant of Anticipatory Bail, The commission added in its report that the Anticipatory bail should be exercised in very exceptional cases. The law Commission was also of the viewpoint that in order to ensure that the provision of anticipatory bail does not get violated or abuse at the instance of unscrupulous petitioners the final order shall be made only after the notice of the public Prosecutor. Further, the Law Commission under the Para 33 stated that the initial order of the court regarding anticipatory should only be an interim one.

The relevant section should make it clear that the direction can be issued for reasons to be recorded, and that if the Court is satisfied that such a direction is necessary for the interest of justice. The Law commission added, it will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the superintendent of police.[8]

154th Report-Law Commission Of India

The 154th Report of Law Commission of India, in its Chapter VI, deals with the issue of bail, anticipatory bail, and other issues like sureties.

Provisions relating to Bail is discussed under chapter XXXIII, Sections 436 to 450 of the Code of Criminal Procedure, 1973. The expression bail-in real essence means that releasing of an accused for minor offences or for serious offences on the discretion of the court, so that the accused may attend the court proceedings by signing a bond with sureties that he will appear before the court, whenever the court calls him for the attendance during the trial or while investigation for the matter he is charged.

The Commission considered an issue that the bail system discriminates against the poor and poor are not able to furnish the bail bond on account of their poverty but for the wealthier persons, it would be easy to secure a bail bond as they can afford for the bail.

The Supreme Court in the case of Moti Ram v. State of Madhya Pradesh[9] stated that the bail covers both releases on one's own bond, or without securities.

203 Rd Report- Law Commission Of India

The 203rd report of the Law Commission of India dealt with Section 438 of the Code of Criminal Procedure, 1973 which has been amended by the Code of Criminal Procedure (Amendment) Act, 2005. Section 438 is basically known as the application of bail in anticipation of arrest.

Recommendations under Clause 38 to amend Section 438 of the Code of Criminal Procedure code, to the effect that the:
  1. Court of Session or High Court shall only exercise the power of granting Anticipatory bail;
  2. If the Court of Session or High Court does not reject the anticipatory bail applications and makes an interim order of bail, it should give notice to the Superintendent of Police and Public
  3. Prosecutor and the questions of bails would again be re-examined in the contention of the parties.
  4. It is important for the presence of a person in the court seeking anticipatory bail subject to certain exceptions.

Circumstances In Which Release Of Bail Is Authoritative

4.1 Cases other than those of Non- Bailable Offences [Sec. 436]
Section 436 of the Code of Criminal Procedure states that in what cases bail to be taken;
Section 436(i)[10] states that when any person who is arrested or detained in a Bailable offence without a warrant by a police officer, such person shall be granted bail or to be released on bail, even the Section 436(i)[11] states that the Court or Police officer, can also discharge the arrested or detained person without sureties for his appearance.

Whereas, Section 436(ii)[12], states that in any case if an accused person fails to comply with the conditions of bail-bond as, the time and place of attendance, The court refused to release the accused person on bail, moreover Court can also impose a penalty on it as well.

If the accused person has served half of his punishment as prescribed in the Penal Code for the offence he is charged, at that time he can be released on bail but the same cannot be done in case of the death penalty[13].

4.2 Default Bail ( Section 167(2))
Emphasizing Section 57 of Code of Criminal Procedure Code, it states that the accused arrested not to be detained more than 24 hours except where the circumstances are reasonable, and such period shall only be exceeded with the special order from the Magistrate under Section 167[14], in addition, 24 hours should be excluded for the time necessary for the journey from the place of arrest to Magistrate's office.

Section 167[15], states for the procedure when the investigation cannot be completed within 24 hours, the magistrate can extend the time period for 15 days for the investigation. The magistrate cannot extend the time period total for 90 days[16], where the investigation relates to an offense punishable with death or imprisonment for a term of not less than 10 years of imprisonment for life.

Further, 90 days[17], in a case where the investigation relates to any other offenses as prescribed above and on the expiry of the said period of 90, or 60, as the case may be, the accused person shall be released on bail with certain conditions.

Recently, The Supreme Court in the case of Bikramjit Singh v. State of Punjab [18], A 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

The Supreme Court in the case of S. Kashi v. State[19] held that Right For Default Bail Is Indefeasible Right.

The Court said:
The debate on Section 167 must also be looked at from the perspective of the expeditious conclusion of the investigation and from the angle of personal liberty. This Court also held that the right for default bail is an indefeasible right which cannot be allowed to be frustrated by the prosecution.

It further added:
The scheme of Code of Criminal Procedure as noticed above clearly delineates that provisions of Section 167 of the Code of Criminal Procedure give due regard to the personal liberty of a person. Without submission of charge sheet within 60 days or 90 days, as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to personal liberty.

4.3 No reasonable ground for believing an accused to be guilty(Section 437(2)
Section 437(2)[20] of the Code of Criminal states that When any person accused of or suspected of the commission of any non-bailable offense is arrested or detained without warrant by a police officer or an accused person appears before a court, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offense, but there are sufficient grounds for further inquiry into his alleged guilt, then, the accused shall, subject to the provisions of Section 446-A and pending such inquiry, be released on bail, or, at the discretion of such officer or court, on the execution by him of a bond without sureties for his appearance[21]. An officer or a Court releasing any person on bail under this provision is required to record his or her reasons for doing so[22].

Transit Bail

The word transit in simple words means that while in the journey, whereas the word Bail means Release from the custody of Police. Transit Bail can be defined as the bail by the Court not having jurisdiction over the place of the offence.

For example; 'A' a person who commits a crime in Rajasthan and is arrested in Delhi, now Delhi Court is having jurisdiction to grant bail to the accused under Section 81 of the Code of Criminal Procedure Code, 1973.

Transit Bail is not defined anywhere under the Code of Criminal Procedure Code, but Section 79 to 81 of the Code of Criminal Procedure, 1973 lays down the procedure for it.
Section 79[23] states about the warrant directing the police officer for execution outside the jurisdiction, as when a warrant is directed to a police officer for the execution beyond the local jurisdiction of the court issuing it, he is authorized to take it for the endorsement to the Executive Magistrate or the police officer not below the rank of an officer, who is in charge of the police station, within the local limits where the warrant is to execute, whereas such magistrate or police officer shall endorse his name and shall give him authority to execute it. Same is with an exception that police officer may arrest a person in another jurisdiction without endorsement or authorization from Magistrate or Police officer as to where reason is believed that such authorization or delay would prevent such execution.

Section 80[24] lays down the procedure for the arrest of the person against whom the warrant is issued, it states that a place where a warrant of arrest is executed, a person arrested shall be produced within the local magistrate where the warrant is being issued.

Section 81[25] lays down the procedure by Magistrate before whom such arrested person is brought, it states that the Executive Magistrate or District Superintendent of Police or Commissioner of Police as if the offense is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under section 71[26] on the warrant and such person is ready and willing to give the security required by such directions the Magistrate, District Superintendent or Commissioner shall take such bail or security, as the case may be, and forward the bond, to the Court which issued the warrant.

Starting from Section 79[27] for issuing of a warrant of arrest to outside the Jurisdiction to Section 81[28], the Executive Magistrate or District Superintendent of Police or Commissioner of Police can grant bail shows the whole process of Transit Bail under the Code of Criminal Procedure, 1973.

However, the bench observed it was settled law that the jurisdiction lies with the concerned court of the state where the FIR is lodged and the transit bail is granted for making a person to appear before the competent court.

Anticipatory Bail

The word anticipatory is not defined anywhere in the Code of Criminal Procedure Code, 1973, but in simple language, it means that a direction is given by Session Court or High Court to Police Offer to release the person on Bail before he is arrested in the case of non-bailable offences or it is an order by the Court that when a person arrested shall be released on bail.
Section 438 is the provision of the code of criminal procedure code which provides discretion for grant of bail to person apprehending arrest [29].

6.1 Jurisdiction & Discretionary power of Court to grant Anticipatory Bail
Section 438(1)[30] provides a discretionary power to the Session Court and High Court with a word that court may, if it thinks fit, and further it states that any person who has any reason to believe that he may be arrested on an accusation of having committed non-bailable offenses, he may apply and it is only the discretion of the court whether to release on bail or not and if the court thinks that a person to be released on bail than the court may direct in the event of such arrest to release him on bail.

In the case of Directorate of Enforcement v P.V. Prabhakar Rao[31]the Supreme Court held that Anticipatory bail can only be granted by a High Court or a Sessions Court only after they have exercised their power of judicial discretion properly.

Section 438 of Cr.PC is a procedural provision concerned that concerns itself with the personal liberty of each and every individual. Contrary to ordinary bail, anticipatory bail allows a person to be released on bail even before arrest made.

In the case of Gurbaksh Singh Sibia vs the State of Punjab,[32] a five-judge bench of the Supreme Court led by Chief Justice Y V Chandrachud ruled that Section 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).

The Bench Observed:
It may perhaps be right to describe the power (of anticipatory bail) as of an extraordinary character. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise.

In the case of Suresh Vasudeva v. State,[33] the Delhi High Court held that Section 438(1) of Cr.P.C. applies only to non-bailable offences.

6.2 Reasonable Apprehension of Arrest
Whereas, the High court or Session Court during the time of granting bail may include conditions and such bail to be considered as Conditional Anticipatory bail[34]. And conditions to be as follows:
  • That a person released on bail shall be available for the interrogation by a police officer, whenever he is required to be[35]
  • That the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer[36];
  • That a person shall not leave India, without the permission of the court[37];
As may be imposed by Section 437(3)[38], as if the bail were granted under Section 437[39].

6.3 Arrest without a warrant in case of Anticipatory Bail
Section 438(3)[40] states that If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offense decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under subsection (1).[41]

6.4 No Anticipatory Bail after Arrest
Accused do not have a remedy under Section 438[42], after the arrest at that time he can only seek remedy under Section 437 or Section 439 if he wishes to be released on bail for the offenses for which he is arrested and in other cases, the accused can apply for default bail under the Section 167(2) but not in the case of Death Sentence or imprisonment of life. Whereas, Section 438 cannot be invoked at the time of the arrest.

Conclusion
Bail is a matter of a right, but at the same time, it depends on the discretion of the court, that whether the Court of Session and High Court to grant bail or not. It can be stated that the failure from the side of the accused in furnishing the bail bond can result in the cancellation of bail or it can be said that the bail is granted at that period of time when the accused furnish the bail bond.

The factor that while granting bail, the accused needs to furnish the bail bond, is somehow still discriminatory in the present society. The 154th Law Commission Report of India considered the same issue that the bail system discriminates against the poor and poor are not able to furnish the bail bond on account of their poverty but for the wealthier persons, it would be easy to secure a bail bond as they can afford for the bail.

The laws need to be more strengthening regarding it and the discriminatory practices in the courtrooms need to be abolished. Further, the process of bail is a legitimate process, and the accused needs to appear before the court whenever he is directed to.

The researcher, in this article, has tried to explain all the provisions related to bail and emphasized on Law Commission of India reports for clarity. Further in this article researcher explained about two different types of bail apart from Interim and Regular i.e Default and Transit Bail and tried to shows that some of the discriminatory practices by the court at the time of granting bail.

Further, this Article is open for further research, reference and law report.

End-Note:
  1. Section 4, Code of Criminal Procedure, 1898.
  2. Section 2, Code of Criminal Procedure, 1973.
  3. Law Lexicon, Ramanth Iyer, 3rd Edition.
  4. Black's Law Dictionary, 177, 4th Edition.
  5. Law Commission of India, 41st Report on tile Code of Criminal Procedure, Vol. J. p. 311 (969).
  6. Ibid.
  7. lawcommissionofindia.nic.in/reports/Report268.pdf
  8. 48th Law Commission Report. http://lawcommissionofindia.nic.in/1-50/Report48.pdf
  9. 1979 SCR (1) 335.
  10. Code of Criminal Procedure, 1973.
  11. Ibid.
  12. Ibid.
  13. Section 436-A, Code of Criminal Procedure, 1973.
  14. Supra note 10.
  15. Ibid.
  16. Section 167(2)(a)(i), Code of Criminal Procedure, 1973.
  17. Section 167(2)(a)(ii), Code of Criminal Procedure, 1973.
  18. 2020 SCC OnLine SC 824
  19. 2020 SCC OnLine SC 529
  20. Supra Note 10.
  21. Section 437(2), Code of Criminal Procedure, 1973.
  22. Section 437(4), Code of Criminal Procedure, 1973.
  23. Section 79, Code of Criminal Procedure CODE, 1973.
  24. Section 80, Code of Criminal Procedure Code, 1973.
  25. Section 81, Code of Criminal Procedure Code, 1973.
  26. Supra Note 10.
  27. Supra Note 21.
  28. Supra Note 23.
  29. Section 438, Code of Criminal Procedure Code, 1973.
  30. Supra note 10.
  31. AIR 1997 SC 3868
  32. 1980 AIR 1632
  33. 1978 CriLJ 677
  34. Section 438(2), Code of Criminal Procedure Code, 1973
  35. Section 438(2)(i), Code of Criminal Procedure Code, 1973.
  36. Section 438(2)(ii), Code of Criminal Procedure Code, 1973.
  37. Section 438(2)(iii), Code of Criminal Procedure Code, 1973.
  38. Supra Note 10.
  39. Ibid.
  40. Supra Note 10.
  41. Supra Note 28.
  42. Supra Note 27.
Written By:
  1. Rishab Bhandari - Final Year (BBA.LLB) Chandigarh University.
    Mail id- [email protected], Ph no: +91-9878134703.
  2. Anshu Prasad - Third year, B.A. LL.B (Hons.) - National University of Study and Research in Law, Ranchi.
    Mail id- [email protected], 6202903637

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