CrPC - All you need to know about Bail

Objective

In this post we will try to answer below questions:

  1. What is the meaning of Bail ? (You may already know this)
  2. Why we need a Bail?
  3. Who can grant a Bail ? (Police and Magistrate)
  4. When the Bail can be granted ?
  5. When the Bail is not granted ?
  6. What are different types of Bail? And Anticipatory Bail ?
  7. Can bail be cancelled ?
  8. Some important case laws 

1.What is Bail ?

Bail means release of accused or suspected person from police custody or judicial custody.

As per Black's law dictionary, bail can be defined as 

Procure the release of person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction of the court

CrPC lays down in detail tons of things about the bail. Chapter 33 deals in details about bails and bonds.

CrPC doesn't define what exactly "Bail" mean. However it has definition for words like "Bailable" and "Non-Bailable" offense as these offenses are enlisted in Schedule 1. You can read about classification of offenses here.


2.Why we need a Bail ?

First, police goes and arrest a person. Then we have a provision to release that person. That's like total waste of Police efforts. 

Why on earth we need to release an accuse?

Because he is an accuse and not a convict!!!  It's equally possible that he might have not committed a crime. Wouldn't it be wrong to take away the liberty of person who might not be involved.

Many a times Police generally act on orders from Political bosses. Politician might abuse the power to to harass the opponent. They actually do!!
 So we really need to safeguard the individual liberty of general folks like you and me.

Also article 21 guarantees fundamental right to liberty. Liberty should not be taken away for unreasonable grounds, like opposing government or particular party in power.

Bail is  granted to Convicts too! Now why bail to convicts? Because there might be circumstances which calls for temporary release of convicted person, for example death of near/dear ones, some illness which only family member could take care of.

In nutshell, Bail is really really needed in some cases.

3.Who can grant a Bail ?

Two authorities have power to grant a bail:

  1. Police
  2. Magistrate
Which authority can grant a bail depends on different circumstance. In some cases police have power to grant a bail, in some cases Magistrate have power to grant a bail. Sometimes both have power to grant a bail. Yes, we will see those circumstance soon..! 

4.When Bail can be granted ?

Bail can be granted at a time:

  1. Before Arrest
  2. After Arrest
  3. After conviction
Now let's consider bail in different Scenario

Bail in Bailable offence

Section 436 of CrPC have provision related to this. This is the scenario where magistrate as well as police can give a bail to arrested person. 

Arrested person has to make a promise to authority that he will appear if Court calls him to appear. We call this promise a bond. This bond could be with surety meaning some person guarantee the appearance of arrested person at later date or without surety. Money can be given as surety.!!

Bail in Non-Bailable offence

As per Section 437(2), both magistrate and police can grant a bail in Non-bailable offence if it appears to them that grounds on which person is arrested are not that strong or substantial. Meaning there is slight doubt that person have committed an offence but not strongly then such person can be release. There is lot of scope of subjectivity here!

When trial is not concluded within stipulated time, then also Bail can be granted in Non-Bailable offence.

When there is date fixed for evidence, and even after 60 days of such date nothing happened and accused was in custody for whole such period then also Bail can be claimed.

When trial is concluded but judgement is pending, in that case also Bail can be claimed by accused, if court thinks that there are reasonable grounds that accused is not guilty, then court can grant a bail on bond.

Bail by Police

In above case we have seen that Police can grant a bail without the permission of Magistrate. Below are some additional provision when Police have authority to grant a Bail

As per Section 41 A, when arrest is not required for cognizable offence but police do arrest then Police have authority to grant a bail.

Remember Police can arrest without warrant in non-cognizable offence also when person who commits such offences and don't give address and name details when asked. When such person is arrested and his details are found out, he can be release on Bail by police as per Section 42. Similarly Police can grant as per Section 43.

When police don't found enough evidence during course of investigation they can grant a bail to arrested person as per Section 167.

Bail by Magistrate

Magistrate can bail in tons of situations. Below are some important provisions as to when magistrate can grant a bail.
 
In some scenario, only magistrate have a power to grant a bail. Generally in serious crime, police don't have a power to grant a bail.

As per Section 437, in Non-bailable offence Magistrate can grant a bail.

As per Section 44, if any offence is committed in presence of Judicial or Executive Magistrate(Collector), and such person is arrested, then these magistrate can grant a bail of such person. 

As per Section 436-A, if person is in jail and undergone half the punishment for which he is accused then Magistrate can grant a bail.

As per Section 437-A, if arrested person likes to appear before Appellate court, then Bail can be granted by Magistrate.

What if arrest warrant is issued by Delhi court and person is arrested in Jurisdiction of Mumbai Court? Do Mumbai Court Magistrate have power to grant a Bail. Answer is YES as per section  81 of CrPC.

When Magistrate is empowered to issue summons/arrest warrant to some person, and that person is present before him and if that person executes a bond that he will appear in court when called, then Bail can be granted by Magistrate (Section 88)

When investigation is not completed withing stipulated time then Magistrate can grant a Bail as per Section 167. Generally custody of accused can be extended up to 90 days in Case of uber serious offences and 60 days in other case. After this period accuse can claim a bail.

In case the accused is of Unsound mind, then also Magistrate can grant a bail as per section 330. However it has to be taken care that released person must not cause injury and someone should take care of person of unsound mind.

As per Section 340, where person is tried for contempt of lawful authority, Magistrate may make an inquiry and grant a bail on security.

As per Section 360 magistrate can grant a bail on probation of good conduct or after admonition. This is for person who is under 21 of age and person is not hardened criminal.

As per Section 395, when Court referred the Matter to High Court (Reference) then till High court decides on referred matter Court can grant a bail to accused person.

As per Section 397, Higher court can call for records to look into matter (Revision as we know) when such court calls for record may direct the suspension of sentence and release the convict on bail.

There are provisions as to Bail by Magistrate(Generally Executive Magistrate) in Section 106,107,108 that will discussed separately while discussing those chapters.

Bail by Court of Session or High Court

Special Power is given to High Court and Court of Session under Section 439. Yes, these court can grant a person who is in custody to be released on Bail

5.When Bail is not available ?

When person is previously convicted for cognizable offence punishable with death or imprisonment for life, and again he is arrested for similar offence and there are substantial grounds for such accusation, then that person cannot claim bail.

When person is previously convicted TWO or MORE times for offence punishable with imprisonment for 3-7 years and He is MEN above 16 years, and again arrested and asking for bail, in that case too  bail cannot be claimed. 

6. What are different types of Bail

Regular Bail

It's a really regular bail. You are arrested and you get a Bail. Bail as per Section 437/439

Interim Bail

It's bail for short period of time. Generally before your regular Bail.

Anticipatory Bail

This is dealt in Section 438. This bail is also mostly in news as many rich and famous and powerful, when they feel that they are going to be arrested resort to this type of bail.

When person apprehends or feels that they are going to be arrested for Non-bailable offence, they can apply for Bail in High Court or Sessions Court. Bail for rich!

If person succeed to get such bail, after arrest he is released. In this scenario, Bail is taken in advance in anticipation of arrest and hence it is called anticipatory Bail

7. Cancellation Of Bail

The person who got a bail don't behave, then court can cancel his bail as per Section 437(5) and Section 439(2) and direct the police to arrest the bailed person.

8. Some important judgement

In Lambert Kroger Vs Enforcement Directorate, Court held that there cannot be discrimination on the grounds of Nationality in matter of bail. But if bail is given to foreign person and if he runs away? Ok, let's snatch the passport of him, but let's not discriminate.!

Supreme Court in various cases held that detaining person for unreasonable time is not cool. This happens so often. Check out the news. People who have worked for Tribals have been arrested for long duration without substantial progress in investigation. Nevertheless, it's good principle to study that detaining person for unreasonable time is not cool. This is important. You might well think that they are opposed to your political ideology, so arresting without reason is not bad idea. But remember, how long one political party/ideology can rule, someday it will change and you could be victim for no reason, hence it is important that individual liberties are safeguarded.

See how government of the day abuses the power.


 In Shree Gurubaksh Singh Sibbia Vs State of Punjab, dealing with anticipatory bail, Supreme Court held that there must be reason to believe that person is going to be arrested for non cognizable offences. It should not be based on general vagueness.

We know that lots and lots of people remain in jail, without the trial. We call them under trial. Many of them may not have enough money or nobody to stand surety to them. It doesn't mean that they just cannot exercise their right of bail. They can claim a bail, as stated by Supreme Court in R.D Upadhyay Vs State Of AP.





Sources

Vidya Mitra

R V Kelkar's Lecture on Criminal Procedure.

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