Kinds of bail: an introduction and analysis

I. Introduction

The Hon’ble Justice V.R. Krishna famously observed that “Bail is a Rule and Jail is an exception.” This quote was made keeping in mind the spirit of Article 21 of the Constitution of India which states that no person shall be deprived of his life or personal liberty except according to procedures established by law. When a person is arrested, he is deprived of his personal liberty. The arrest of any person entails loss of reputation, stigma and grave consequences on the family of the arrested person. The concept of bail flows from this fundamental right that a person should not be made to languish in jails unless absolutely necessary. Bail, in simple terms, means that a person accused of an offence can seek his release from custody if he fulfils certain conditions laid down [1]. This article discusses the different kinds of bail under the Code of Criminal Procedure, 1973.

II. Statutory provisions

The expression ‘bail’ hasn’t been defined specifically under the Code of Criminal Procedure, 1973 (‘Code’). The provisions relating to bail are contained in Chapter 33 of the Code (Sections 436 to 450). The Code segregates the offences between bailable and non-bailable offences. Section 2(a) of the Code defines “bailable offence” to mean an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non- bailable offence” means any other offence.

Section 436 of the Code states that a person accused of a bailable offence will have the right to be released on bail at any stage of proceedings. This means that even if a person is arrested in respect of a bailable offence, he can be immediately released on bail. In respect of bail under Section 436 of the Code, it is the right of the accused to get bail and the Court, or the investigating officer cannot refuse bail.

On the other hand, Section 437 of the Code states that in case of non-bailable offences, bail can be granted at the discretion of the Court. The Court referred to in Section 437 refers to a Court other than a High Court or Court of Sessions. It has been consistently held that the discretion to grant bail under Section 437 “cannot be arbitrary, fanciful or vague” [2]. In other words, the discretion to grant bail should always be exercised by courts judicially and not according to “whim, caprice or fancy” [3]. Section 437 further provides that a person accused of a non-bailable offence cannot be granted bail if:

(i) There are reasonable grounds to believe that he has committed an offence punishable with the death penalty or life imprisonment.

(ii) That the accused has committed a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life, or imprisonment of seven years or more or if the accused has been convicted on two or more instances of a cognizable and non-bailable offence.

The proviso to Section 437 further provides that the above conditions will not apply if the accused person is under the age of sixteen years or is a woman or is sick or infirm or if the court is satisfied that it is just and proper to release the person on bail. Similarly, Section 439 of the Code provides for grant of bail by the High Court or the Court of Sessions. Thus, one of the main differences between Section 437 and Section 439 is the Court before which the bail application is filed.

III. Kinds of bail

The Code contemplates grant of different types of bail to an accused person. They are briefly summarized as under:

(a) Regular bail

The bail granted to an accused person under Section 437 or Section 439 of the Code is commonly what is referred to as regular bail. This normally implies that in case a person is arrested in respect of a non-bailable offence, he shall be released on fulfilment of certain conditions till the conclusion of the trial.

(b) Anticipatory Bail

Section 438 of the Code provides that if a person is apprehending arrest in case of a non-bailable offence, the person may approach the High Court or a Court of Sessions seeking a direction that in the event of his arrest, he shall be released on bail. Anticipatory bail is a form of pre-arrest bail and can be sought only if a person has not been arrested. If the person is arrested, then the person has to seek regular bail under Section 437 or Section 439 as discussed above.

The concept of anticipatory bail is based on the recommendation made by the Law Commission of India in its 41st report. The Law Commission explained the object behind the introduction of anticipatory bail to protect the people from getting falsely implicated in case and ending up in prison. The Courts have held that anticipatory bail ought to be granted only in very deserving cases where it is apparent that the person seeking anticipatory bail will be seriously prejudiced if such bail is not granted.

(c) Default Bail

Section 167 of the Code provides that when a person is arrested and the investigation cannot be completed within a period of 24 hours, the arrested person shall be produced before a Magistrate who has the power to authorize his detention for a period not exceeding 15 days. Normally, this period of detention is further extended for 15 days by the Magistrate to enable the police or the investigating agency to complete the investigation. However, Section 167(2) further provides that the period of detention cannot be extended for more than 90 days in case of offences punishable with death, imprisonment with life or imprisonment of not less than 10 years. In case of other offences, this period is 60 days. In simple terms, this means that if the police or the investigating agency does not complete its investigation with 60 days/90 days by filing a chargesheet or a complaint, then the accused person shall be entitled to a default bail.

The right to a default bail is an absolute right and not at the discretion of any Court. Thus, if the accused is able to demonstrate that 60 or 90 days as the case may be, have elapsed since his arrest and no chargesheet or complaint has been filed, the Court is bound to grant him default bail.

(d) Interim bail

The bail granted for a short period of time is commonly known as interim bail. This bail is generally granted in cases where the accused person is otherwise not entitled for a regular bail, however, there exist circumstances (i.e., medical or humanitarian) because of which the Court feels that the person can be released for a short period of time (say 4 weeks or 8 weeks depending on the circumstances).

(e) Medical bail

The bail granted to a person purely on medical grounds is known as medical bail. This is a type of regular bail but granted purely on medical considerations. While granting medical bail, the Courts generally do not go into the merits of the case and whether the various criteria for grant of bail are satisfied or not.

(f) Bail under Section 436A of the Code

Section 436A of the Code states a person accused of any offence (other than an offence which is punishable with death) has been in custody of a one-half of the maximum period of imprisonment which can be imposed on him for such offence, such person can be released on bail. In a country like India where the trials take substantial time to complete, the insertion of Section 436A is a very benevolent section which grants the relief to accused persons who do not have the access to an effective representation.

IV. Conclusion

Thus, bail is an important right available to an accused person to protect his fundamental right guaranteed under Article 21 of the Constitution of India. The law around bail is still evolving especially with the new age offences like economic offences, which the society is faced with.

Endnotes:

[1] Sudesh Kumar Sharma, ‘Dimensions of Judicial Discretion in Bail Matters’ (1980) 22 Journal of the Indian Law Institute 351.

[2] Jai Prakash Singh v State of Bihar (2012) 4 SCC 379

[3] Guru Baksh Singh Sibbia v State of Punjab (1980) 2 SCC 565