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Bail

Dr. Mohd. Asad Malik

The term bail is not defined under CRPC. Bail is a kind of security which is given by the accused
to the court that he will attend the proceedings against the accusations made upon him and
include personal bond and bail bond.

Bail is a mechanism used to ensure that the accused is present before the court.

The two authorities that can grant bail are police and courts.

Types of Bail In India

There are commonly 3 types of bail in India which a person can apply depending upon the stage
of the criminal matter:

1. Regular Bail: A regular bail can be granted to a person who has already been arrested
and kept in police custody. A person can file a bail application for regular bail under
Section 437 and 439 of the CrPC.
2. Interim Bail: Interim bail is a bail granted for a short period of time. Interim bail is
granted to an accused before the hearing for the grant of regular bail or anticipatory bail.
3. Anticipatory Bail: A person who discerns that he may be arrested by the police for a
non-bailable offence, can file an application for anticipatory bail. It is like an advance
bail obtained under Section 438 of the CrPC. A bail under Section 438 is a bail before
arrest and a person cannot be arrested by the police if the anticipatory bail has been
granted by the court.

The basic goal behind arresting and detaining a person behind the jail is that when the accused is
required by the court during the trial he must appear in court for the trial. The process of bail is a
complex mechanism, it is considered to be very delicate and conflicting at the same time. The
reason it is very delicate is that an accused seeks for bail when the trial is pending in the court
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and it can’t be said that the accused is innocent or culprit. Sometimes when the bail is not
granted to the accused person it may curtail the liberty of the innocent accused or while granting
bail may result in giving extra-liberty and freedom to the actual culprit. The basic and
fundamental object of bail is to ensure the attendance of accused at the trial before court.

The concept of bail and personal liberty goes hand in hand and therefore every individual
including the accused person has the right to seek bail in order to get himself released from
custody until and unless proven guilty by a court of law. As enshrined under Article 21 of the
Indian Constitution that the life and personal liberty of a person can’t be deprived except by the
procedures laid down by the law.

The sections from 436 to section 439 deal with the provisions of bail.

There are two types of offences bailable and non-bailable offence. The distinction between
bailable and non-bailable offences is based on the gravity of the offence. Though the schedule I
of CrPC provided the bailable or non bailable offence.

As per section 436 CrPC bail in bailable offence is an absolute right. But as per section 436 (2),
if a person has violated the conditions of the bail bond earlier, the court may refuse to release
him on bail, on a subsequent occasion in the same case. He can also be asked to pay penalty for
not appearing before the court in the proceedings against him.

Bail in non-bailable offences section 437 of the code

It depends upon the discretion of the court or the police officials that they may release the person
arrested for non-bailable offences until and unless there exists any reasonable grounds or
apprehension that person arrested has committed any crime and is not guilty of any criminal
liabilities which is punishable with life imprisonment or the death penalty.

Under section 437 When a person is accused of, or suspected of, the commission of any non-
bailable offence, is arrested or detained without warrant or appears or is brought before a Court
other than the High Court or Court of Session, he may be released on bail, but such person shall
not be so released, a] if there appear reasonable grounds for believing that he has been guilty of
an offence punishable with death or imprisonment for life; b] if such offence is a cognizable
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offence and he had been previously convicted of an offence punishable with death, imprisonment
for life or imprisonment for seven years or more, or he had been previously convicted on two or
more occasions of a non-bailable and cognizable offence c] He may be released if under the age
of sixteen years or is a woman or is sick or infirm d] He may be released if it is satisfied that it is
just and proper so to do for any other special reason [4] e] Accused person may be required for
being identified by witnesses during investigation is not a sufficient ground for refusing bail if he
gives an undertaking that he shall comply with such directions as may be given by the Court. f]
If it appears to such officer or Court at any stage of the investigation, inquiry or trial that there
are no reasonable grounds for believing that the accused has committed a non-bailable offence,
but there are sufficient grounds for further inquiry into his guilt, subject to the provisions of
section 446A and pending such inquiry, he be released on bail, or, at the discretion of such
officer or Court on the execution by him of a bond without sureties. g] When a person accused or
suspected of the commission of an offence punishable with imprisonment which may extend to
seven years or more or abatement of, or conspiracy or attempt to commit, any such offence, is
released on bail under sub-section (1) the Court may impose following condition which the Court
considers necessary in order to ensure that (i) such person shall attend in accordance with the
conditions of the bond (ii) shall not commit an offence similar to the offence of which he is
accused or of the commission of which he is suspected, or(iii) otherwise in the interests of
justice. h] An officer or a Court releasing any person on bail under subsection (1), or sub-section
(2), shall record in writing his or its reasons or special reasons for so doing. i] Any Court which
has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it
necessary so to do, direct that such person be arrested and commit him to custody. j] If, in any
case triable by a Magistrate, the trial of any nonbailable offence is not concluded within a period
of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in
custody during the whole of the said period, be released on bail to the satisfaction of the
Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. k] If, at
any time after the conclusion of the trial of a person accused of a non-bailable offence and before
judgment is delivered the Court is of opinion that there are reasonable grounds for believing that
the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on
the execution by him of a bond without sureties for his appearance to hear judgment delivered.
At the stage of consideration of bail what the Court is normally required to consider are; (1) The
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nature and seriousness of the accusation (2) Severity of the offences (3) Nature of the evidence
collected and the character and behavior of the accused [5] (4) Chances of the accused
absconding and not being available during the trial (5) Possibility of repetition of such crime (6)
Chances of the accused of tampering with the evidence and witnesses, and (7) Last but not the
least, larger interest of the people and the State.

The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v.
State of Rajasthan MANU/SC/8394/2008 : (2009) 2 SCC 281, thus:

6. "Bail" remains an undefined term in Code of Criminal Procedure. Nowhere else has the term
been statutorily defined. Conceptually, it continues to be understood as a right for assertion of
freedom against the State imposing restraints. Since the UN Declaration of Human Rights of
1948, to which India is a signatory, the concept of bail has found a place within the scope of
human rights. The dictionary meaning of the expression "bail" denotes a security for appearance
of a prisoner for his release. Etymologically, the word is derived from an old French verb
"bailer" which means to "give" or "to deliver", although another view is that its derivation is
from the Latin term "baiulare", meaning "to bear a burden". Bail is a conditional liberty. Stroud's
Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: ...when a man is
taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is
restrained of his liberty. And, being by law bailable, offereth surety to those which have
authority to bail him, which sureties are bound for him to the King's use in a certain sums of
money, or body for body, that he shall appear before the justices of goal delivery at the next
sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed-that is to say, set
at liberty until the day appointed for his appearance. Bail may thus be regarded as a mechanism
whereby the State devolutes upon the community the function of securing the presence of the
prisoners, and at the same time involves participation of the community in administration of
justice.

7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by
law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the
community. A balance is required to be maintained between the personal liberty of the accused
and the investigational right of the police. It must result in minimum interference with the
personal liberty of the accused and the right of the police to investigate the case. It has to
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dovetail two conflicting demands, namely, on the one hand the requirements of the society for
being shielded from the hazards of being exposed to the misadventures of a person alleged to
have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz.
the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to
wholesome restraint, the more restraint on others to keep off from us, the more liberty we have.
(See A.K. Gopalan v. State of Madras)

8. The law of bail, like any other branch of law, has its own philosophy, and occupies an
important place in the administration of justice and the concept of bail emerges from the conflict
between the police power to restrict liberty of a man who is alleged to have committed a crime,
and presumption of innocence in favour of the alleged criminal. An accused is not detained in
custody with the object of punishing him on the assumption of his guilt.

In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:

"2. The basic rule may perhaps be tersely put as bail, not jail, except where there are
circumstances suggestive of fleeing from justice or thwarting the course of justice or creating
other troubles in the shape of repeating offences or intimidating witnesses and the like, by the
petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but
only illustrative.

The principles, which the Court must consider while granting or declining bail, have been culled
out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi MANU/SC/0193/2001 :
(2001) 4 SCC 280, thus: The jurisdiction to grant bail has to be exercised on the basis of well-
settled principles having regard to the circumstances of each case and not in an arbitrary manner.
While granting the bail, the court has to keep in mind the nature of accusations, the nature of the
evidence in support thereof, the severity of the punishment which conviction will entail, the
character, behaviour, means and standing of the accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the presence of the accused at the trial, reasonable
apprehension of the witnesses being tampered with, the larger interests of the public or State and
similar other considerations. It has also to be kept in mind that for the purposes of granting the
bail the legislature has used the words "reasonable grounds for believing" instead of "the
evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to
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whether there is a genuine case against the accused and that the prosecution will be able to
produce prima facie evidence in support of the charge. It is not expected, at this stage, to have
the evidence establishing the guilt of the accused beyond reasonable doubt.

In State of U.P. v. Amarmani Tripathi MANU/SC/0677/2005 : (2005) 8 SCC 21, this Court held
as under: 18. It is well settled that the matters to be considered in an application for bail are (i)
whether there is any prima facie or reasonable ground to believe that the accused had committed
the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of
conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character,
behaviour, means, position and standing of the accused; (vi) likelihood of the offence being
repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger,
of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati v. NCT, Delhi and
Gurcharan Singh v. State (Delhi Admn.)). While a vague allegation that the accused may tamper
with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such
character that his mere presence at large would intimidate the witnesses or if there is material to
show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be
refused. We may also refer to the following principles relating to grant or refusal of bail stated in
Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11)

11. The law in regard to grant or refusal of bail is very well settled. The court granting bail
should exercise its discretion in a judicious manner and not as a matter of course. Though at the
stage of granting bail a detailed examination of evidence and elaborate documentation of the
merit of the case need not be undertaken, there is a need to indicate in such orders reasons for
prima facie concluding why bail was being granted particularly where the accused is charged of
having committed a serious offence. Any order devoid of such reasons would suffer from non-
application of mind. It is also necessary for the court granting bail to consider among other
circumstances, the following factors also before granting bail; they are: (a) The nature of
accusation and the severity of punishment in case of conviction and the nature of supporting
evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat
to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram
Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas.)

Also see Sanjay Chandra v. CBI 2012 SC

Wasim Ahmed v. The State of West Bengal, May 20, 2019 The Supreme Court has observed that
an accused cannot be indefinitely kept in jail for his inability to produce registered surety for
reasons beyond his control.

Jeetendra vs. State of Madhya Pradesh, March 18, 2020 Bail is rule and jail is exception,
reminded the Apex Court while granting bail to a person whose bail application was rejected by
the High Court even though the Police had filed closure report.

A forgery case was registered against the accused in 2012. The police filed a closure report in
2013. But five years later, a Judicial Magistrate ordered further investigation. He was thereafter
arrested in January 2019. His first bail application before the Madhya Pradesh High Court was
dismissed. The second was dismissed as withdrawn.

Meanwhile, the police reinvestigated the case and submitted a second report stating that no
offence has been committed by the appellant and he deserves to be discharged. After filing of
this closure report, the accused filed yet another bail application before High Court, on the
grounds that the second closure report has not been accepted by the Trial Court and that
appellant has failed to point out whether material witnesses have been examined or not.

While allowing the appeal filed by the accused, the bench of CJI SA Bobde, Justices BR Gavai
and Surya Kant, said:

"The High Court ought to have kept in view that `Bail is rule and jail is exception'. There is no
gainsaying that bail should not be granted or rejected in a mechanical manner as it concerns the
liberty of a person. In peculiar circumstances of this case where closure report was filed twice,
the High Court ought not to have declined bail only because the trial court was yet to accept the
said report. Further, the examination of witnesses would depend upon the fate of 2nd closure
report. Considering the nature of allegations attributed to the appellant and the period he has
already spent in custody, we are satisfied that he deserves to be released on bail forthwith."

Sanjeev Sharma v. State of NCT of Delhi, Bail Appl. No. 774 of 2020, decided on 15-04-2020

Delhi High Court: Rajnish Bhatnagar, J. while conducting a hearing through Video
Conferencing, addressed a very pertinent matter with regard to bail of petitioner alleged for
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assaulting two women resident doctors of Safdarjung Hospital after accusing them of spreading
COVID 19.

In the present matter, FIR was registered under Sections 354, 341, 323, 506 and 509 of Penal
Code, 1860 against the petitioner for the above-stated reasons. Incident that took place as stated
in the FIR was that complainant was working as Junior Resident (Casualty) at Safdarjung
Hospital, she along with her sister went to a fruit shop to bu fruits wherein a person standing
started speaking about social distancing and remarked that doctors like them were spreading
infection in residential areas.

Further complainant told the petitioner that she knew importance of social distancing but the
petitioner got abusive and threatened to get a case registered against them. It is alleged that when
petitioner was about to leave complainant assaulted them and touched in an inappropriate
manner.

It was contended by the petitioner that he was only concerned about the social distancing being
maintained between the people looking into threats of coronavirus, he added he was being falsely
implicated . Further it was argued that all the sections except Section 354 IPC were bailable.

APP while opposing the bail application submitted that the allegations were grave and serious in
nature and petitioner rather than being thankful to the doctors attacked and molested them.

Bench stated that as the country is passing through a very difficult phase and the doctors are
rendering women service to the nation, petitioner being an educated man should have been
respectful to the doctors rather than abusing and threatening them.

In Court’s opinion, no useful purpose would have been served by keeping the petitioner in J.C
and overcrowding Tihar Jail, thus he is admitted to bail on furnishing a bail bond.

Bail can be cancelled as per section 437(5) and section 439 (2)

BHARATBHAI BHIMABHAI BHARWAD VERSUS STATE OF GUJARAT AND OTHERS

In Bharatbhai Bhimabhai Bharwad vs. state of Gujarat, the bench comprising Justice, while
setting aside a High Court order, observed:

"It is well settled that the consideration applicable for cancellation of bail and consideration for
challenging the order of grant of bail on the ground of arbitrary exercise of discretion are
different. While considering the application for cancellation of bail, the Court ordinarily looks
for some supervening circumstances like; tampering of evidence either during investigation or
during trial, threatening of witness, the accused is likely to abscond and the trial of the case
getting delayed on that count etc. Whereas, in an order challenging the grant of bail on the
ground that it has been granted illegally, the consideration is whether there was improper or
arbitrary exercise of discretion in grant of bail."

In the case before the High court, grant of bail was challenged on the ground of arbitrary exercise
of discretion ignoring the relevant materials to be considered in the application for bail. The High
Court declined to interfere with the order passed by the trial court granting bail to the accused
and relegated the complainant to approach the Sessions Court on the alleged breach of condition
of bail and for imposing the appropriate conditions.

In the appeal filed against, the High Court order, the Apex Court bench observed that, in this
case, the High Court proceeded under the footing as if it was an application only for cancellation
of bail. The bench then remanded the matter to the High Court for fresh consideration.