Bail in Criminal Law
Bail
The concept of bail is not new. The basic philosophy behind bail is that an accused person should be released from the custody of law enforcement into the custody of sureties. This is an interim order that the court can withdraw at any stage according to circumstances.
Relevant Provisions
Sections 496, 497, and 498 of the Criminal Procedure Code (Cr.P.C) are relevant provisions.
Meaning of Bail
Bail refers to the security that a court requires for the release of an accused person. It is essentially a transfer of the accused from judicial custody to sureties, with the condition that the sureties will remain bound for the future appearance of the accused in court whenever required.
Kinds of Bail
Bail can be categorized into the following three types:
i. Bail After Arrest / Post-Arrest Bail
This type of bail is granted to an accused person after their arrest, applicable to both bailable and non-bailable offenses. When law enforcement arrests an individual, bail may be granted under Section 497 of the Cr.P.C.
ii. Bail before Arrest / Pre-Arrest Bail
Bail before arrest is granted when the court believes that an individual may have been falsely implicated in a case and is likely to suffer irreparable damage to their dignity, honor, or reputation due to arrest.
Note: In the case of bail before arrest, the registration of a case is necessary.
iii. Protective Bail
Protective bail allows an accused person to approach the relevant court in other provinces to obtain pre-arrest bail without addressing the merits of the case.
iv. Direct Approach to High Court
Superior courts can entertain applications for pre-arrest bail and grant relief to the accused in appropriate cases where the accused can demonstrate, among other things, that they were prevented from approaching the lower court concerned.
v. Bail after Conviction
This type of bail is granted when, after the conviction of the accused, an appeal has been accepted for hearing, and the court finds grounds for the release of the accused. In such cases, the court may accept the bail petition and allow bail under Section 426.
Kinds of Bail by Nature
Bail can also be classified into two types based on its nature:
i. Interim Bail
Interim bail is granted by the court for a specific period without hearing the prosecution.
ii. Permanent or Confirmed Bail
Permanent or confirmed bail is granted by the court after hearing both parties, i.e., the petitioner and the prosecution.
Pre-conditions for Confirmation of Pre-Arrest Bail
The following are the pre-conditions or essential ingredients for the confirmation of pre-arrest bail:
i. Ulterior Motives
The arrest of the petitioner should be based on ulterior motives. There should be a doubt that the motive for involving the accused in a criminal case is not genuine. If an ulterior motive is proven, pre-arrest bail can be confirmed, especially if it is also established that the apprehension of imminent arrest, humiliation, and unjustified harassment of the accused is due to ulterior motives or mala fide intentions on the part of authorities or other influential persons.
ii. Heinousness of Offence
The heinousness of the offense is not a significant factor in granting pre-arrest bail. Pre-arrest bail cannot be refused solely based on the severity of the offense.
iii. Commission of Offence
Pre-arrest bail can be confirmed when the investigation is complete and indicates that the accused did not commit the offense.
iv. Physical Surrender
The petitioner/accused must physically surrender themselves before the court. This means that pre-arrest bail cannot be granted to an absconder.
v. Fit Case
The petitioner’s case should be a fit case for the court to exercise its discretion in confirming bail. If the petitioner’s case meets the necessary criteria, pre-arrest bail can be granted.
vi. Bail Bond
Pre-arrest bail can be confirmed when the accused is ready to submit a bail bond as prescribed under the Criminal Procedure Code.
Pre-conditions for Confirmation of Post-Arrest Bail
The following are the pre-conditions or essential ingredients for the confirmation of post-arrest bail:
i. Prohibitory Clause
According to Section 497 of the Criminal Procedure Code, post-arrest bail cannot be granted if there are reasonable grounds to believe that the petitioner is guilty of an offense punishable with death, life imprisonment, or imprisonment for ten years. Therefore, a pre-condition for confirming post-arrest bail is that the alleged offense should not fall within the prohibitory clause of Section 497.
ii. No Reasonable Ground for Commission of Non-Bailable Offence
Another pre-condition for confirming post-arrest bail is that there should be no reasonable grounds to believe that the accused has committed a non-bailable offense.
iii. Sufficient Grounds for Further Inquiry
For the confirmation of post-arrest bail, there should also be sufficient grounds for further inquiry into the guilt of the accused.
iv. Bail Bond
Post-arrest bail can be confirmed when the accused is ready to submit a bail bond as prescribed under the Criminal Procedure Code.
Grounds for Granting Bail in Non-Bailable Offences
Bail can be granted in non-bailable offenses under the following circumstances:
i. Personal Enmity
If it is proven that personal enmity exists between the accused and the complainant, bail can be granted in a non-bailable offense.
ii. Rule of Consistency
If a co-accused in a non-bailable offense has already been granted bail, the petitioner or other co-accused may also be granted bail based on the principle of consistency.
iii. Child or Woman
When the accused/petitioner is a child or a woman, bail can be granted in a non-bailable offense.
iv. Sick or Infirm Person
When the accused/petitioner is sick or infirm, bail can be granted in a non-bailable offense.
v. Insufficient Evidence
If there is insufficient evidence against the commission of the alleged non-bailable offense, bail can be granted.
vi. Doubt or Recovery
When the facts and circumstances of a non-bailable offense case are such that the case becomes doubtful or nothing is recovered from the accused, bail can be granted.
vii. Delay in Registration of FIR or Trial
When there is a delay in registering the FIR without sufficient grounds, or a delay in the trial, bail can be granted in a bailable offense.
Conclusion
In conclusion, bail in bailable offenses is a matter of right and should be granted. However, bail in non-bailable offenses is not a matter of right but rather a statutory concession that the court may grant in exceptional circumstances where the pre-conditions or essential ingredients for granting bail exist.