Concept Of Bail

The concept of bail has a long history and deep roots in English and American Law. In medieval
England, the custom grew out of the need to free untried prisoners from disease ridden jails while they
were waiting for the delayed trail conducted by travelling justices. Prisoners were bailed, or delivered, to
reputable third parties of their own choosing who accepted responsibilities for assuring their appearance
at trial. If the accused did not appear, his bailer would stand trial in his place.1

Term bail has not been defined in Code of Criminal Procedure as such. It has been taken from French
word Bailer which means To Give and another Latin word Bajulare means One who bear. It
means release from lawful custody and its lawful in two situations, i.e. ARREST and SURRENDER
BEFORE COURT. Then a person can file his petition for bail.

According to American Jurisprudence, Article 6, Page 785, there is power in the court to release the
defendant without bail or on his own recognition. Likewise, the definition of bail as given in Websters
Third New International Dictionary: The process by which a person is released from custody.2

Bail, IN LAW, means procurement of release from prison of a person awaiting trial or an appeal, by the
deposit of security to ensure his submission at the required time to legal authority.3

Law Lexicon Dictionary has defined bail as Security for the appearance of the accused person when
he is released pending trial or investigation.4

According to Black Law Dictionary, Bail is to procure the release of a person from legal custody, by
undertaking that he shall appear at the time, at place designated and submit himself to the jurisdiction
and judgement of the court.

1 Ibid.

2 Shailender Malik, The Code of Criminal Procedure 616 (Allahabad Law agency, Faridabad (Haryana), 18 th
edition 2012).

3 http://ezinearticles.com/?Right-To-Bail-In-India&id=914724

4 K.N. Chandrasekharan Pillai, R.V. Kelkars Criminal Procedure 290 (Eastern book company, Lucknow, 6 th
edition 2015).
What is contemplated by bail is to procure the release of a person from legal custody, by undertaking
that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment
of the court.5 In fact when a person is granted bail, he is deemed to be under the custody of the court.6

Bail in popular sense means, a generic expression used to describe judicial release from custodia juris.
In todays time the principle of Bail is the Rule and Jail is an Exception is practiced.

PRINCIPLES OF BAIL

Some of the principles followed while granting bail are as follow:

An accused person is presumed to be innocent until proved thereof, therefore he is entitled to be

released on bail.
Bail can be granted at any stage of proceeding even after the commencement of the trial.

It is important to know that question of bail arises only when person is arrested. In fact, state has to
reconcile the personal demand and the demands of the society and via media is bail. As trial may
continue for years which implied that person cant be kept behind bars for years.

PURPOSE AND OBJECTIVE

The important purpose of arrest is to secure the presence of the accused person at the time of his enquiry
or trial and to ensure that he is available to receive sentence on conviction. 7 If this purpose can be
achieved without forcing detention on the accused during enquiry or trial, it would be an ideal blending
of two apparently conflicting claims, namely, freedom of an individual and the interests of justice. The
provisons relating to bail have been enacted with a view to restore liberty to the arrested person without
jeopardizing the objectives of the arrest.8

5 Blacks Law Dictionary (4th Edn.) 177.

6 Thaniel Victor v. State, 1991 Cri LJ 1249, 1255 (Cal.)

7 Kelkar

8 kelkar
The release on bail is crucial to the accused because if it is denied, it would mean that even though he is
presumed to be innocent till the guilt is proved beyond reasonable doubt, he would be subjected to the
psychologoical and physical deprivations of life. The jailed accused fails to contribute effectively to the
preparation of his defense and the burden of which then falls heavily on the innocent family members.
Therefore, the law of bail attempts to devise such a system and to operate it in such a manner as to
enable it to release on bail maximum number of accused persons without seriously endangering the
objectives of arrest and trial.9

Certain objectives for which bail is given are:

To justify the fundamental principle of presumption of innocence in Criminal jurisprudence.

To ensure personal liberty as provided in Article 21 of the Constitution of India.
One can prepare ones defence well.
Saves from social stigma.
To avoid psychological pressure when he is in jail.
Family may suffer from financial loss.
It suits the state as well because otherwise it will be burden on state exchequer.
International movement that non custodial matters shall be adopted to improve criminal justice
system across the globe.

But in case of serious crime, where the arrested person, if released on bail, is likely to temper with
evidence or witnesses, or obstruct the fair trail, or likely to commit more offence during his release on
bail, it would be unwise to grant him bail and restore his liberty

TYPES OF OFFENCES

The Code of Criminal Procedure has classified offences in two categories:-

Bailable offences
Non-bailable offences

Even though bail has not been defined in the Code, the terms bailable offence and non-bailable offence
has been well defined in Section 2 (a) of our Code of Criminal Procedure 1973.

Section 2(a) provides that :

9 Ibid
Bailable offence means an offence which is shown as bailable in the first schedule or which is made
by any other law for the time being in force and non-bailable offence means any other offence.

It will be seen that code has not given any specific test to determine whether offence is bailable or non-
bailable. It all depends upon what it has been shown in the first schedule of the code.

The concept of bail has furthermore two aspects which are as follow:

Circumstances in which Bail is mandatory,

I.e. BAIL AS A MATTER OF RIGHT
Discretion in granting of bail in case of non-bailable offenses,
I.e. BAIL AS A DISCRETION OF COURT

BAIL AS A MATTER OF RIGHT

I. ARRESTEE ACCUSED OF A BAILABLE OFFENSE

The Code of Criminal Procedure, 1973, makes provisions for release of accused persons on bail. Section
436 of the Code provides for release of bail in cases of bailable offenses. This section covers all cases of
persons accused of bailable offenses, cases of persons though not accused of any offense but against
whom security proceedings have been initiated under Chapter VIII of the Code, and all other cases of
arrest and detention which are not in respect of any bailable offense. (kelkar 284)

SECTION 436 OF THE CRIMINAL PRODECURE CODE, 1973 is as follow:

(1) When any person other than a person accused of a non-bailable offence is arrested or detained
without warrant by an officer in charge of a police station or appears or is brought before a court and
is prepared at ay time while in the custody of such person shall be released on bail:

Provided that such officer or court if he or it thinks fit may (may and shall if such person is indigent
and is unable to furnish surety instead of taking bail) from such person discharge him on his
executing a bond without sureties for his appearances as hereinafter provided:

(Explanation where a person is unable to give bail within a week of the date of his arrest it shall be
sufficient ground for the officer or the court to presume that he is an indigent person for the purpose
of this proviso.)
 Provided further that nothing in this section shall be deemed to affect the provisions of sub-section
(3) of section 116 [or section 446A.]

(2) Notwithstanding anything contained in sub section (1) where a person has failed to comply with the
conditions of the bail-bond as regards the time and place of attendance the court may refuse to
release him on bail when on a subsequent occasion in the same case he appears before the court or is
brought in custody and any such refusal shall be without prejudice to the powers of the court to call
upon any person bond by such bound to pay the penalty thereof under section 446.

Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the
officer-in-charge of a police station or any court does not have any discretion whatsoever to deny
bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary
appearance of the person accused of an offense even where no summons or warrant has been issued
against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the
appearance of the accused must be in the obedience of a process issued by the court. The surrender
and the physical presence of the accused with the submission to the jurisdiction and order of the
court is judicial custody, and the accused may be granted bail and released from such custody.

The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high
amount of bond or bail-bond to be furnish by the person seeking bail.10 Section 440(1) provides the
amount of every bond executed under this chapter shall be fixed with due regard to the
circumstances of the case, and shall not be excessive. Further S. 440(2) empowers the High Court or
the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.

Though there is no specific provision for appeal against refusal to grant bail under Section 436(1),
the High Court or Sessions Court can be moved for bail under Section 439. Moreover, refusal to
grant bail in contravention of Section 436 will make the detention illegal and the police officer
causing such detention maybe held guilty of wrongful confinement under Section 342 of IPC.11

Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the
condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not
as of right to be entitled to bail when brought before the court on any subsequent date even though

10 See, Mohd. Tariq v. Union Of Indiaaa, 1991 Cri LJ 474 (All); Afsar Khan v. State, 1992 Cri LJ 1676 (Kant.)

11 Dharmu Naik v. Rabindranath Acharya, 1978 Cri LJ 864 (Ori.)

 the offense may be bailable.12 Further, if a person is released on bail under Section 436 (1) indulges
in acts which are entirely subversive of a fair trial in the Court, the High Court or the Sessions Court
may cancel his bail and commit him to custody.13

The amendment to Section 436 obligates the court or the police officer to release a person on his
own surety if he is really indigent. The explanation inserted by Act 25 of 2005 would help the court
to release the accused without surety. Inability of the accused to seek bail with surety for a week
could be a ground to presume that he is an indigent. If the person thus released does not turn up in
the court he may be punished with imprisonment with a term which may extend to one year or with
fine or with both under Section 229-A of IPC inserted in 2006.

In Morit Malhotra v. State of Rajasthan,14 the accused was granted bail under section 436 by the
police. But when he appeared before the court he was advised to take bail from the court. He
challenged the orders in the Rajasthan High Court which ruled that it is not necessary for an accused
to get bail granted by the court if he has already been granted bail by the police. The court drew
support from the Supreme Court decision in Free Legal Aid Committee, Jamshedpur vs. State of
Bihar,15 wherein it was ruled that in a sessions case if the magistrate has granted bail, the accused
need not seek bail from the court of sessions.

Having regard to the nature of relationship of the person on bond with the court and the powers
conferred on the court under section 436, it appears that the above ruling may not be generally
followed by the courts.

An interesting question arose in Haji Mohamed Wasim vs. State of U. P.16 before the Allahabad
High Court as to the validity of bail granted by police officers. In this case the accused that was on
bail granted by police preferred nor to appear before the court. The trial court issued a non bailable
warrant which came to be challenged by the accused under section 482. The court ruled that he has

12 Article Source: http://EzineArticles.com/914724

13 See, S. 439(2)

14 1991 Cri. LJ 806 (Raj)

15 AIR 1982 SC 1463

16 1992 Cr. LJ 1299.

 to take fresh bail from trial court. It reasoned: The power of a police officer in-charge of a police
station to grant bail and the bail granted by him comes to an end with the conclusion of the
investigation except in cases where the sufficient evidence is only that of a bailable offence, in
which eventuality he can take security for appearance of the accused Before the magistrate on a day
fixed or from day to day until otherwise directed. No parity can be claimed with an order passed by
magistrate in view of enabling provision contained in clause (b) of section 209.under which the
committal Magistrate has been empowered to grant bail until conclusion of trial, which power was
otherwise restricted to grant of bail by him during pendency of committal proceedings under clause
(a) of section 209.10 The real situation, as it obtains today in the society, is amply clear that police
discretion is not always being properly exercised in the matter of arrest. The citizens are being
deprived of their liberty and the police have become a kind of terror for the citizens because of their
undue harshness with the public in general and the suspects in particular.

INGREDIENTS:

A person is arrested in case of a bailable offence

The person is arrested without warrant

If the accused or arrested person is ready to furnish bail by executing a bail bond , then court
or police official has the authority to release him on bail after executing a bond with/without

Section 50(2) makes it obligatory for a police officer arresting such a person without a warrant to
inform him his right to be released on bail. Section 436 (1) of the Code signifies that release on bail
is a matter of right, or in other words, the officer-in-charge of a police station or any court does not
have any discretion whatsoever to deny bail in such cases.

II. SECTION 436-A

The new provision Section 436Awas introduced in order to solve the problems of under trials'
who were languishing in jails as they will now be given an opportunity to be set free instead of
endlessly waiting for their trial to take place. This move has been made due to a faulty criminal
justice system and provides a makeshift method of providing justice and relief to under trial
prisoners. This seems to suggest that the Legislature and the Government have accepted the
existence of the faulty system and their inability to do anything about it. For this purpose section
436 A was inserted.
 According to S. 436-A, a person who has undergone detention for a period extending upto half of
the maximum period of imprisonment imposed for a particular offense, shall be released on
her/his personal bond with or without sureties The procedure provided is that the Court has to
hear the Public Prosecutor and give its decision with reasons in writing. The Court may release
the applicant, or if not satisfied may order for the continued detention of the applicant. However,
no prisoner can be detained for a period longer than the maximum period of imprisonment
provided. The exception to the section is that it is not applicable to offenders who have been
sentenced to death.17

III. INVESTIGATION NOT COMPLETED WITHIN THE TIME PRESCRIBED

IV. NO REASONALBE GROUND EXISTS FOR BELEIVING THE ACCUSED
GUILTY OF NON-BAILABLE OFFENSE
Where any person accused or suspected of the commission of any non-bailable offense is
arrested or detained without warrant by an officer in charge of a police station or appears or is
brought before a court, and if it appears to such officer, or court at any stage of investigation,
enquiry or trial, 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
enquiry into his guilt, then, according to Section 437(2), the accused shall, pending such enquiry,
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. An officer or court releasing any person on bail under
this provision is required to recorded reasons for doing so. [S. 437(4)]

V. TRIAL BEFORE MAGISTRATE NOT CONCLUDED IN 60 DAYS

If in any case triable by a Magistrate, the trial of a person accused of any non-bailable offense is
not concluded within a period of 60 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. [437(6)] This provision does not apply in cases triable by Sessions Court

RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL

LIBERTY
There are good reasons to miss Justice V. R. Krishna Iyer to whom we owe much of our re-
thinking about bail as a fundamental right and not just an untidy gift from the judge deciding a
bail application. Working, as he says, by "candlelight" on bail applications, Krishna Iyer was
astonished in Babu Singh's case (1978) that bail orders were made with "impoverished brevity

17 Article Source: http://EzineArticles.com/914724

 draped as discretion". He added: "To glamorise impressionistic orders as discretionary may on
occasions make a litigative gamble decisive of a fundamental right".18

The Personal liberty is of utmost importance in our constitutional system recognized under
Article 21. Deprivation of personal liberty must be founded on the most serious considerations
relevant to welfare objectives of the society as specified in the Constitution. The Apex Court of
the Country has laid down in its judgments that

"Personal liberty, deprived when bail is refused, is too precious a value of our constitutional
system recognized under Article 21 that the crucial power to negate it is a great trust exercisable,
not casually but judicially, with lively concern for the cost to the individual and community. To
glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble
decisive of a fundamental right. After all, personal liberty of an accused or convict is
fundamental, suffering lawful eclipse only in terms of procedure established by 'law'.

Thus personal liberty is not curbed except in accordance to the procedure established by law in
order to strike a balance between the right to individual liberty and the interest of society.19

From this, three things are clear: (i) Bail is a fundamental right (ii) The norm is bail not jail (iii)
Good reasons, with full explanation in writing must exist for denying bail. Building on this, in
1980, Parliament added to Section 437 of the CrPC that even in highest punishment cases,
special consideration has to be given to juveniles under 16 years, women, the sick and infirm. All
this - although good law - has been lost by judicial amnesia.20

In this day and age, the four major concerns about bail can be easily met, namely about the accused (i)
absconding (ii) noncooperation with the police during investigation (iii) intimidating witnesses and (iv)
tampering with evidence. In the 2G case, the charge sheet and supplementary charge sheet have been
filed. Bail with precautionary conditionalities can be imposed. Impose high surety bonds. The new
solution of accused wearing an electronic anklet, which will give the exact location of the accused, can be
imposed. Conditions can also be imposed regards witnesses and evidence which if violated will result in
cancellation of bail. This is called putting the accused on terms.After all this, the principle of "bail not
jail" applies squarely. The magistrates and judges are obliged to give weighty reasons in writing for
denying bail. Unfortunately, India's bail practice is haphazard, ad hoc, temperamental and swayed by
judicial moods influenced by publicity
18 http://indiatoday.intoday.in/story/right-to-bail-v.-r.-krishna-iyer-kanimozhi-in-
2g/1/158977.html

19http://www.mondaq.com/india/x/272954/trials%20appeals%20compensation/Bail%20A
%20Matter%20Of%20Right%20Not%20To%20Be%20Denied%20On%20The%20Ground
%20Of%20Nationality

20 SUPRA 18 (india times article)

RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID -:
ARTICLES 21 AND 22 READ WITH ARTICLE 39A
Article 21 of the Constitution is said to enshrine the most important human rights in criminal
jurisprudence. The Supreme Court had for almost 27 years after the enactment of the
Constitution taken the view that this Article merely embodied a facet of the Dicey on concept of
the rule of law that no one can deprived of his life and personal liberty by the executive action
unsupported by law. If there was a law which provided some sort of procedure, it was enough to
deprive a person of his life and personal liberty.

In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for
an accused person. Article 22(1) does provide that no person who is arrested shall be denied the
right to consult and to be defended by legal practitioner of his choice, but according to the
interpretation placed on this provision by the Supreme Court Janardhan Reddy v. State of
Hyderabad, AIR 1951 SC 227. in this provision does not carry with it the right to be provided the
services of legal practitioners at state cost. Also Article 39-A introduced in 1976 enacts a
mandate that the state shall provide free legal service by suitable legislations or schemes or any
other way, to ensure that opportunities for justice are not denied to any citizen by reason of
economic or other disabilities - this however remains a Directive Principle of State Policy which
while laying down an obligation on the State does not lay down an obligation enforceable in
Court of law and does not confer a constitutional right on the accused to secure free legal
assistance.
However the Supreme Court filled up this constitutional gap through creative judicial
interpretation of Article 21 following Maneka Gandhi's case. The Supreme Court held in M.H.
Hoskot v. State of Maharashtra a AIR 1978 SC 1548nd Hussainara Khatoon's case that a
procedure which does not make legal services available to an accused person who is too poor to
afford a lawyer and who would, therefore go through the trial without legal assistance cannot be
regarded as reasonable, fair and just. It is essential ingredient of reasonable, fair and just
procedure guaranteed under Article 21 that a prisoner who is to seek his liberation through the
court process should have legal services made available to him.

The right to free legal assistance is an essential element of any reasonable, fair and just
procedure for a person accused of an offence and it must be held implicit in the guarantee of
Article 21.
Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the
language of Article 21 and held that this is....

"a constitutional right of every accused person who is unable to engage a lawyer and secure legal
services on account of reasons such as poverty, indigence or incommunicado situation and the
State is under a mandate to provide a lawyer to an accused person if the circumstances of the
case and the needs of justice so require, provided of course the accused person does not object to
the provision of such lawyer."

Conclusion

It is indisputable that an unnecessarily prolonged detention in prison of under trials before being
brought to trial is an affront to all civilized norms of human liberty and any meaningful concept
of individual liberty which forms the bedrock of a civilized legal system must view with distress
patently long periods of imprisonment before persons awaiting trial can receive the attention of
the administration of justice. Thus the law of bails must continue to allow for sufficient
discretion, in all cases, to prevent a miscarriage of justice and to give way to the humanization of
criminal justice system and to sensitize the same to the needs of those who must otherwise be
condemned to languish in prisons for no more fault other than their inability to pay for legal
counsel to advise them on bail matters or to furnish the bail amount itself.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in
the Code of Criminal Procedure enabling the release, inappropriate cases, of an under trial
prisoner on his bond without sureties and without any monetary obligation. There is urgent need
for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons
today include many who are unable to secure their release before trial because of their inability
to produce sufficient FINANCIAL guarantee for their appearance. Where that is the only reason
for their continued incarceration, there may be good ground for complaining of invidious
discrimination. The more so under a constitutional system which promises social equality and
social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty
only is an incongruous element in a society aspiring to the achievement of these constitutional
objectives. There are sufficient guarantees for appearance in the host of considerations to which
reference has been made earlier and, it seems to me, our law-makers would take an important
step-in defence of individual liberty if appropriate provision as made in the statute for non-
financial releases.

Article Source: http://EzineArticles.com/914724

Judicial Trend
An overview of the following cases highlight the adverse condition of the poor with regard to the
unjust bail system in India. In State of Rajasthan v Balchand [14], the accused was convicted by
the trial court. When he went on appeal the High Court, it acquitted him. The State went on
appeal to the Hon'ble Supreme Court under Art. 136 of the Constitution through a special leave
petition. The accused was directed to surrender by the court. He then filed for bail. It was then
for the first time that Justice Krishna Iyer raised his voice against this unfair system of bail
administration. He said that though while the system of pecuniary bail has a tradition behind it, a
time for rethinking has come. It may well be that in most cases an undertaking would serve the
purpose.

In Moti Ram and Ors. v State of M.P [15], the accused who was a poor mason was convicted.
The apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate to enlarge
him on bail, without making any specifications as to sureties, bonds etc. The CJM assumed full
authority on the matter and fixed Rs. 10,000 as surety and bond and further refused to allow his
brother to become a surety as his property was in the adjoining village. MR went on appeal once
more to the apex court and Justice Krishna Iyer condemned the act of the CJM, and said that the
judges should be more inclined towards bail and not jail.
In Maneka Gandhi v Union of India [16], Justice Krishna Iyer once again spoke against the
unfair system of bail that was prevailing in India. No definition of bail has been given in the
code, although the offences are classified as bailable and non-bailable. Further Justice
P.N.Bhagwati also spoke about how unfair and discriminatory the bail system is when looked at
from the economic criteria of a person this discrimination arises even if the amount of bail fixed
by the magistrates isn't high for some, but a large majority of those who are brought before the
courts in criminal cases are so poor that they would
find it difficult to furnish bail even if it's a small amount.

Further in Hussainara Khatoon and others v. Home Sec,State of Bihar [17] , the Court laid down
the ratio that when the man is in jail for a period longer than the sentence he is liable for then he
should be released. (http://www.legalserviceindia.com/articles/bail_poor.htm)